Rosalea Hamilton | Deeper look at constitutional reform issues

After nearly two and a half years since the establishment of the Ministry of Legal and Constitutional Affairs (MLCA), we now have a final report outlining the recommendations of the Constitutional Reform Committee (CRC). The recommendations seek to achieve two broad goals: 1) the “Jamaicanisation” of the Constitution; and 2) the abolition of the monarchy and the establishment of the Republic of Jamaica. However, the issues covered in the report do not address the fundamental flaws embedded in the design of the constitution. These flaws are associated with the inherited structure of government that concentrates power in the Cabinet and the prime minister. They must be addressed to give real meaning to the move to establish a republic.

‘JAMAICANISING’ THE CONSTITUTION

Here, the report focused on the revocation of the Jamaica (Constitution) Order in Council, 1962; the insertion of a preamble; insertion of iconic Jamaican representations, and new words of enactment. These are important aspects of Jamaicanising the Constitution, but much more is needed. Specifically, the most significant way to Jamaicanise the constitution is to redesign the structure of government to give meaning to the sovereignty of the Jamaican people.

During the colonial era, monarchical sovereignty was expressed by the dictates of successive colonial governors who made and executed the law. In 1962, monarchical sovereignty shifted from the governor to successive prime ministers and their cabinets by s.69(2) of the Constitution, instead of shifting to the people of Jamaica. Since then, unfettered cabinet mandates and prime ministerial dictates have become the norm in shaping policy and law. S.69(2) require that Cabinet “shall be collectively responsible therefore to Parliament”. But this has no meaning, given the dominance of the Executive in the Legislature and the absence of mechanisms for effective oversight of cabinet decisions.

The core issue of an autocratic prime minister able to dominate Cabinet was debated among the drafters of the Constitution in 1961. In his book The Politics of Constitutional Decolonization, Trevor Munroe noted:

“… conceding a Prime Minister superordinate constitutional authority ran the risk of perpetuating in a new guise an old feature of plantation society - autocratic decision-making … they were giving constitutional force to a feature of politics whose good side may have been a self-confident optimism about the future but whose bad side was rooted in history and society.”

For Norman Manley, “the hardest drafting point” other than the Bill of Rights was the power of dissolution. Manley and others argued that to give the prime minister the absolute power to get a dissolution would allow him to “bully” the entire Cabinet, to say nothing of the parliamentary party. The Opposition conceded this probability but argued that it was an inevitable cost of stable government. They agreed that the Constitution should deprive the head of state of any discretion to refuse a request for dissolution from the prime minister. Munroe noted that Manley’s first vice-president, Wills Isaacs, said this:

“… in truth and in fact a Prime Minister is a dictator for five years ... if he is a sensible man he will listen to the views of his Ministers ... but ... he is basically a dictator for five years”.

Edward Seaga strongly endorsed Isaacs’ view: “Quite right and if any Minister can’t get along, the Minister must resign as only one Minister must rule”.

The result of that posture has been that government was designed to ensure prime ministerial sovereignty. These constitutional design flaws must be rectified as we move to become a republic. It is this authoritarian, top-down system of governance that has stifled the development of Jamaica for decades. Redesigning government and establishing specific mechanisms for the people to participate in policy and law-making and the oversight of the Cabinet is a more meaningful way to ‘Jamaicanise’ the Constitution.

ABOLISHING MONARCHY AND ESTABLISHING REPUBLIC

Here, the report focused on the issues associated with replacing the British monarch with a local president and retaining the parliamentary cabinet system of government as the key elements in establishing a republic. The report ignores the essential characteristic of a republic as a system of government in which the people actively participate in making the laws under which they are governed, and in overseeing their implementation. It is wholly inadequate to refer to “Jamaica’s sovereignty” and the “power of the Parliament” in section 13.1 of the report, without specific provisions for the active role of the people.

Further, the recommendations not only retain the basic structure that perpetuates Executive dominance in Parliament, but also strengthens the power of the prime minister. These include:

1. Changes to the Senate - The report recommends changes to the size and composition of the Senate. Recognizing the problem of Executive dominance, the Opposition noted that: “It is an important safeguard to retain the Opposition having 1/3 plus 1 of the senators, which is the only buffer against the Executive completely dominating the Legislature and only applies to entrenched matters.”

2. Appointment of president via a simple majority vote of both Houses of Parliament. This ensures that the prime minister will always have his/her choice of president.

3. No fixed dates for elections - This perpetuates prime ministerial dominance in determining our election dates. Disappointingly, the report suggests that a “precise and inflexible date may be problematic in a small country like Jamaica”, without indicating what these problems may be.

The Opposition has refused to sign the report because of the omission of simultaneous removal of the UK Privy Council as Jamaica’s final court with removal of the British monarch as head of state. Their preference is “a seamless transition to complete decolonization as a unitary exercise”.

ADDRESSING CONSTITUTIONAL DESIGN FLAWS

The move to a republic to “complete decolonization” must go beyond removing the UK Privy Council as Jamaica’s final court and replacing the British monarch with a local president. It must also include specific constitutional provisions that allow the people and their communities to participate in policy/law-making and executive oversight, and, thereby, end the legacy of authoritarian, executive sovereignty. In particular, such provisions would address the constitutional design flaws through the following:

1. A restructured parliament to enable effective oversight of the executive by the legislature, and non-executive control of the law-making process with specific arrangements for public participation in the process.

2. An improved, independent judiciary to increase access to justice and enable judicial decisions that transforms our economy and society in partnership with the executive and legislative branches of government. Here, the removal of the Privy Council as Jamaica’s final court of appeal is necessary.

3. A strengthened public service that improves governance, especially through constitutional protection for special public services to enhance democracy, increase accountability and protect human rights. Here, I agree with the CRC that the Office of the Public Defender and the Electoral Commission of Jamaica should be given special protection in the Constitution. Similar protection is also needed for the Office of the Political Ombudsman and the Integrity Commission.

4. A strengthened system of local government and community empowerment to give real meaning to “effective participation of local communities in the affairs of local government” (s.2(4)(a), The Constitution (Amendment) (Local Government) Act, 2015, as well as the stated objectives under s.3 of the Local Governance Act, 2016. Social and economic development will be enhanced when communities can pursue self-determination and are able to influence policy and law, including budgetary spending, at both the local and national levels.

Jamaica needs a ‘Road to Republic’ that includes a constitutional redesign of our inherited structure of government. It is when we improve governance and make better policies/laws that affect peoples’ lives that we will improve the standard of living for the majority of Jamaicans. We must be bold enough to be authors of a Constitution that creates our own democratic framework for governance … a Jamocracy. We can do it.

Rosalea Hamilton, PhD, is founding director, Institute of Law & Economics. Send feedback to rosaleahamilton@gmail.com