Lloyd Barnett | Identification and status of the head of state

In the previous articles in this series, I expressed the opinion that at present it appears that Jamaica will change from a monarchical form of Constitution to a republican form but that the parliamentary cabinet system will be retained. Should this turn out to be the position, the next question which immediately arises is whether we should establish a new office of President which would replace that of the Governor-General which now exists.

Several responsible members of our society have questioned whether there is a real need for such an office. It is argued that since its functions will be mostly formal, the costs of maintaining such an office and its facilities, which now exceed J$650M per year, will not be justified. It is contended that these funds could have been used to provide our public hospitals with essential equipment such as dialysis machines, digital x-ray equipment, mammography machines and other essential needs which they sorely lack.

More recently, it has been said that in the midst of recent national needs for vision and inspiration brought about by the impact of COVID and Hurricane Melissa, it is to the Prime Minister and political and religious leaders that the public look for inspiration, reassurance and protection not to the formal Head of State.

Nevertheless, several countries adopt the view that it is in the national interest to have a formal Head of State, who personifies national unity and patriotic aspirations. Only recently in 2024, the Constitutional Reform Commission of Barbados took this approach and stated:

The Commission felt that the role of the President as a symbol of national unity was an important function in a small society. While there was robust debate about the wisdom of retaining an Office of the President without substantive executive powers, the majority of the Commission decided that it was of critical import that there be at least one office in the highest echelons of our society and political system which all Barbadians could rally around and of which all Barbadians could be proud. Thus, retaining the President as a non-partisan figure was important for the Commission. The Commission, therefore, declined to require that the President be popularly elected or that the Office be conferred with greater executive powers.”

SIMILAR APPROACH

In Jamaica, the Constitutional Reform Commission in its 1993 report had taken a similar approach stating:

“The Commission concluded that the Governor-General for all practical purposes had been performing as non-political Head of State and had demonstrated that this type of arrangement worked admirably and efficiently in Jamaica. Further, it was very doubtful that in the Jamaican society a politically elected Head of State could personify national unity and carry out the tasks of mediator and conciliator which are sometimes required at the highest political level. Additionally, a salutary convention had been developing of entrusting to the formal Head of State the responsibility to make appointments of non-political and independent arbiters and functionaries to sensitive positions of great constitutional significance.”

The question was re-examined by the CRC which recommended:

“the establishment of the Office of President as the formal Head of State of the Republic of Jamaica where the holder performs ceremonial functions and in whom is also vested certain executive powers which do not involve the administration of government.”

The CRC stated:

“From the public consultations carried out, the CRC is of the understanding that the people’s aspirations for the Office of the President of the Republic of Jamaica are that it should be the embodiment of national identity, national unity and a neutral arbiter for the nation.”

It is therefore difficult to understand why Rev Peter Espeut, as he did in his article in The Gleaner on October 24, berated the CRC for making the recommendations which it did and in his usual tendency to condemn its members described it as a “mock Constitutional Reform Committee”. Rev. Espeut erroneously stated that the CRC was trying to swap one type of monarchy for another. This is clearly false as a monarchy is essentially a system in which succession is hereditary. The fact is that in many countries, within and without the Commonwealth there are formal Heads of State. Both those who consider that it is desirable to have such an office and those who think not, can be sincere and rational.

CONFLICTING VIEWS

If it is decided to establish a formal Head of State, the question then arises as to how should this person be selected. This question has attracted widespread interests and conflicting views. The following are among the most frequently proposed:

(1) Election by the registered voters in a national election;

(2) Election by some type of Electoral College, e.g. all members of both Houses of Parliament, Mayors and Councillors of local authorities and municipalities sitting at the same time;

(3) Nomination of the Prime Minister, after consultation with the Leader of the Opposition and confirmation by a special or simple majority of both Houses of Parliament in a joint session.

It is accepted that it is desirable to have consensus. The problem is that consensus cannot be imposed. If it does not exist, a method of resolution of the issue must be established. This requires careful discussion and an agreed solution.

If Jamaica adopts the proposal for the establishment of a formal Head of State, further important questions arise, such as what term of office should be granted to the appointee, should the appointee be eligible for a renewal of the appointment, should the appointee have any legal immunity and if so, to what extent and should the appointee be subject to removal for misconduct. All these questions will need to be carefully discussed and the options explored fully in the future public discourse on constitutional reform.

Dr Lloyd Barnett is an attorney-at-law and author. Send feedback to columns@gleanerjm.com