Executive president a no-go

Jamaica would not benefit “at this time” from having a directly elected president, according to the Constitutional Reform Committee (CRC), which recommends retaining the Cabinet parliamentary system of government over the executive presidential style.

The CRC says the president, who it is proposing would be appointed through a process involving the prime minister, the leader of the opposition, and the Parliament, “should be the embodiment of national identity, national unity, and neutral arbiter for the nation”.

“The poor record of the presidential system in the preservation of democracy and protection of people against dictatorship is well documented,” noted a section of the confidential 52-page final report dated May 3, 2024, and obtained by The Sunday Gleaner.

It is to be considered by the Jamaican Cabinet on Monday.

The central proposal is the removal of the British monarch as Jamaica’s head of state and the establishment of Jamaica as a republic with a largely ceremonial president, a position on which the ruling Jamaica Labour Party (JLP) and the Opposition People’s National Party (PNP) have come to an accepted position after decades of differences.

Last week, Opposition Leader Mark Golding reiterated that the PNP prefers an executive president but would not fight the Government’s desire for a ceremonial head of state.

The president would replace the monarch as the formal head of state with mainly ceremonial functions. The official would be given certain executive powers “which do not involve the administration of government”.

However, with the two parties poles apart on the issue of the final court, the reform process faces a major roadblock, similar to what happened with reforms in the1990s.

The PNP wants Britain’s Privy Council to be replaced with the Caribbean Court of Justice as Jamaica’s final appellate court at the same time the monarch’s role over Jamaican affairs is being abolished. The Government’s position on the issue is not known over a year into the work of the CRC.

The CRC started its work on the first of three phases in March last year. That phase is expected to deal with the establishment of Jamaica as a republic and other matters for which a referendum is required.

The committee acknowledged that in its engagement with the public, a dominant cry from Jamaicans was for greater accountability, which raised questions about the nature of government and eventually, comparisons as to whether the system in the United States, for example, was better at ensuring that the executive does not dominate the Parliament.

The CRC describes Jamaica’s current system of governance as a parliamentary Cabinet system, from where the executive branch derives its legitimacy, and is accountable to the Parliament.

The head is often called the prime minister and is typically a member of Parliament who is chosen based on leadership or support of the party or parties that gain a majority in parliamentary elections.

Under the presidential form of government, the executive branch is separate from the legislative. The president usually serves as both the head of state and head of the executive. That official is also not usually a member of the legislature.

Strengths and weaknesses

The committee argued that after “carefully weighing” the strengths and weaknesses of the two systems, it recommends the retention of the current system because “there is no doubt that countries which have the parliamentary system are among the most stable democracies …”.

The CRC cited the 1990 national report from a committee led by political scientist Professor Carl Stone, which recommended replacing the parliamentary Cabinet system with the presidential system.

Among developing democracies that Stone named as models for having operated the presidential system successfully were Venezuela, Chile, Brazil, Argentina, Uruguay, and Peru.

“The CRC has noted that since then, these countries that Jamaica has been asked to emulate have experienced severe political turmoil or constitutional crises,” the CRC concluded.

The committee met on Friday to consider several proposals from the opposition leader. An addendum to its report is expected to be provided.

The members disagreed with the proposal for the chief justice to act as president, arguing that “it is undesirable that the chief justice should be diverted from his or her judicial functions to an executive office”. It maintains that custodes are best placed to act. Custodes are currently parish representatives of the governor general.

The CRC accepted Golding’s view that a quasi-judicial body for the removal of the president and not a straight political process through Parliament “is more in keeping with the desirability for political neutrality and the maintenance of impartiality”.

Golding’s push for members of the diaspora, who are not citizens of Commonwealth countries, to be allowed to become parliamentarians did not find favour with the CRC based on the draft CRC response obtained by The Sunday Gleaner.

The Commonwealth citizens are eligible to sit in Parliament.

“From time to time, issues arise in Parliament in which the interests of Jamaica conflict with interests of other countries. A Jamaican citizen is entitled to expect that his or her representative will be true to the oath even if it involves offending a foreign state,” it said.

Meanwhile, the committee said it was not opposed to adopting a composition of 42 for the Senate, higher than the figure of 27 proposed by the CRC, so long as the constitutional safeguard requiring at least one opposition vote for certain constitutional changes is preserved. The current membership is 21.

This latest constitutional-reform process faces being derailed if the two political parties cannot agree on the final court. The opposition leader has made it clear that his parliamentary representatives will not provide the votes needed in Parliament to remove the monarch if there is no simultaneous process for removing Britain’s Privy Council as Jamaica’s final court.

Prime Minister Andrew Holness is yet to articulate the Government’s position on the Privy Council despite commitments from his administration that he would do so.

Holness said it was communicated to the Opposition that the issue would be addressed in subsequent phases of the CRC’s work.

Conflicting positions

“The CRC is of the view that these conflicting positions pose a serious risk to the success of the reform work as the intended alteration of the constitutional provisions cannot succeed without the support of the two political parties represented in Parliament,” the document said.

The CRC said that to help resolve the dilemma, it considered whether the issue of the final court should be put to a referendum, a process not required under the Constitution and which Golding is not in favour of.

The CRC was established in March 2023 with 15 members and is co-chaired by Marlene Malahoo Forte, the legal and constitutional affairs minister, and Ambassador Rocky Meade, the permanent secretary in the Office of the Prime Minister.

Up to May 3, the CRC had held 38 meetings, five town halls, 80 stakeholder engagements, and received submissions from 28 individuals and organisations.

On the instruction of Golding, the three opposition members of the committee have not signed the report.

jovan.johnson@gleanerjm.com