Editorial | A constitutional reset

Apart from Andrew Wheatley’s return from seven years in political purgatory, the most notable feature of Prime Minister Andrew Holness’ new Cabinet is the ditching of Marlene Malahoo Forte, and the merging of her legal and constitutional affairs ministry with the justice. Delroy Chuck is in charge of the portfolio.

This development may be interpreted in two ways: as an acknowledgement by Prime Minister Holness that he erred when, in January, 2022, he placed constitutional reform in Ms Malahoo Forte’s hands; and that she had taken the process as far as she could. The enterprise is therefore in need of a reset, with new personnel at the helm.

Or perhaps more plausibly, it is a combination of the two. In which event, if Dr Holness is serious, the reset can’t be merely cosmetic. It requires a full relaunch, a real search for compromise by the government and the Opposition, and a broader, and deeper, engagement of national stakeholders.

In his speech this week on being sworn-in for a third consecutive term in government, Dr Holness pledged to lead “an inclusive and consultative government”. He promised to “extend my hand” to the Opposition leader, Mark Golding, “to create a space for the national interest”.

“Mark, let us partner together to complete the work we started on making Jamaica a republic,” the prime minister said.

When the Holness administration restarted Jamaica’s stop-start, piecemeal effort at constitutional reform in early 2023, it limited the committee’s mandate to transitioning the island from a monarchy to a republic. Other issues would be addressed later.

REPLACING BRITISH MONARCH

In this regard, the immediate emphasis would be on replacing the British monarch, King Charles III, as Jamaica’s head of state, putting in his place a president.

The committee recommended that Jamaica opt for a ceremonial, rather than executive, president – a matter on which there has long been consensus between the governing Jamaica Labour Party (JLP) and the People’s National Party (PNP).

That agreement notwithstanding, constitutional reform has been gummed up by controversy.

At one level, civil society groups complained that public consultations were neither enough nor sufficiently robust, and accused Ms Malahoo Forte of being too defensive when challenged on these issues.

Politically more important, though, is the posture of the Opposition. Its members refused to sign the committee’s report because of disagreement with some of its recommendations.

Among the PNP’s concerns is how a president would be chosen if the prime minister and the Opposition leader couldn’t agree on a candidate, who could command the votes of at least two-thirds of the members of both houses of Parliament. In that event, any nominee, from either side, would require the support of only a majority of members of the House and the Senate. The government’s choice would be elected.

A more fundamental cause of deadlock, however, is the opposition’s insistence that removing the king as Jamaica’s head of state should happen simultaneously with ditching the UK-based Judicial Committee of the Privy Council (JCPC) as Jamaica’s apex court. Like this newspaper, it believes that Jamaica should accede to the criminal and civil jurisdictions of the Caribbean Court of Justice (CCJ). Jamaica currently participates in the CCJ when the court operates in its original jurisdiction as interpreter of the treaty governing the Caribbean Community (CARICOM).

While Prime Minister Holness had long been reticent about the CCJ, and has suggested that the question of a final court should be put to a referendum, it was only last month, in pre-election debate, that he disclosed his preference for a domestic apex court.

ONLY NEEDS VOTES

Jamaica’s Constitution doesn’t require a referendum to remove the Privy Council. That only needs the votes of the majority of all members of Parliament.

However, the Privy Council ruled that replacing it with a court higher than the domestic Court of Appeal, which is entrenched in the constitution, would require similar entrenchment. That means at least two-thirds vote in each chamber of Parliament for the Bill to pass.

Even if either party could muster two-thirds in the House of Representatives, given the structure of the Senate, with its in-built check on the government, at least one opposition member would have to vote with the government for the legislation to carry – an opportunity Mr Holness’ JLP denied, while in opposition, to PNP administrations on the CCJ.

Similarly, removing the king as head of state requires two-thirds support from legislators, which is a dilemma for Dr Holness. And even parliamentarians vote for the law, unlike with acceding to the CCJ, the decision would have to be affirmed by the electorate in a referendum.

In the event, the parties can engage in a game of chicken, hoping the other side blinks first, or that either can make the other pay for a political price for seeming intransigence. This is neither tenable or socially useful.

Further, like most serious jurists, we do not believe the establishment of a domestic third-tier court is a viable option, especially when there already exists a high-quality regional court, which Jamaica helped to establish and pay for, on which Jamaican judges sit and which is led by a highly-accomplished and respected Jamaican jurist.

Further, outsourcing justice to a court that, in its philosophic construct, is an advisory committee to a foreign-based king, to whose country Jamaicans cannot readily travel, is, like adherence to the monarchy, incompatible with sovereignty. Both must be abandoned together – with urgency.