Bringing home the Constitution

AFTER LAST week’s election by Barbados’ parliament of the country’s governor-general, Dame Sandra Mason, to become the island’s first non-executive president, global news coverage listed Jamaica among the dwindling number of countries that retain the Queen as head of state, but noted its pledge to ditch Her Majesty and join the ranks of republics.

The narrative was similar a year ago when Prime Minister Mia Mottley announced her government’s intention to amend her country’s constitution and complete the transition in time for Barbados’ 55th anniversary of independence this November 30. Dame Sandra will become president on December 1.

What the reports did not say with respect to Jamaica is that our own constitutional reform programme is badly stalled, with no signal from the Government of Prime Minister Andrew Holness if it will be restarted, or if, indeed, the administration remains committed to the island becoming a republic. It is a matter, as we have urged before, on which Mr Holness should break his silence.

It is apparent, though, that even if Mr Holness is still wedded to constitutional reform, most of the bigticket items cannot be achieved, as many people had hoped, in time for the symbolic 60th anniversary of the island’s independence. Which does not mean that something substantial, meaningful, and of practical value to Jamaicans cannot be accomplished.

For instance, if Mr Holness and his administration are so minded, and they move with dispatch, they could possibly still deliver Jamaica’s accession to the Caribbean Court of Justice (CCJ) as the island’s final court on criminal and civil matters, thereby widening access to the final layer of the justice system to a broader group of Jamaicans.

CRUEL IRONY

The head of state is a critical symbol of a country’s sovereignty. In that context, it remains a cruel irony that more than half a century after the island’s independence, the aged matriarch of a dysfunctional British family, who looks nothing like the vast majority of Jamaicans, is the symbol of this country’s deepest aspirations and its reason for being. The majority of Jamaicans agree that this should change, and there is cross-party consensus, having settled on the idea of a non-executive presidency, that it should happen having been settled.

Indeed, the 2012-2016 People’s National Party (PNP) administration said it would make the change. It, however, did not act on the promise, possibly fearing that the required referendum to remove the deeply entrenched constitutional clause that makes the Queen head of state (with the governor general as her representative) might be turned into a plebiscite on unrelated matters of governance.

When Mr Holness’ Jamaica Labour Party returned to office in 2016, it went further, formally promising in the first Throne Speech to table a bill in that parliamentary year “to replace the Queen with a non-executive president as head of state”. There has been no movement on the undertaking, although it made similar pledges in its manifesto for the September 2020 general election.

Holness’ inaction is no doubt driven, too, by the Jamaican politicians’ fear of referendum, a long residual effect of the 1961 referendum on the West Indies Federation, called by the PNP, that resulted in Jamaica’s withdrawal from, and ultimately to the collapse of, the regional group. Further, Mr Holness, without any need to do so, promised to put the matter of the CCJ and the repeal of the buggery law in “a grand referendum”, which, if his administration goes through with it, is likely to deliver intellectual babel rather than policy clarity.

ACCEDE TO THE CCJ

Mr Holness can do much, and leave a lasting legacy to his premiership, by just straightforwardly extricating from this conundrum by immediately moving to have Jamaica accede to the CCJ. This would require only that the constitutional amendment bills lay in the table of Parliament for three months prior to debate and be passed with two-thirds majorities in the legislature. Given the Opposition’s commitment to the CCJ, that should be easy.

The impact of this move would be substantial. Economics and a sense of distance and alienation from the court limit the access of most Jamaicans, except for the wealthy, well-to-do, or people convicted of murder and who are represented pro bono by British barristers, to the London-based Privy Council, Jamaica’s final court. Accession to the Port-of-Spain-based CCJ, whose quality of jurisprudence is highly praised, would remove or substantially lower those barriers.

It would also be a first, but a big step, to a larger process of constitutional liberation. Having built trust on this matter, the parties could move to the constitutionally more complex matters of removing the Queen and installing a president in her place, and having the island’s Parliament approving the constitution, rather than having it remain the outcome of Order in Council that was signed by a British civil servant, which is anathema to sovereignty.

Given that legislation is already drafted and the process clearly understood, the CCJ bit might be achievable for next August. The rest could follow in relatively short order, well before Mr Holness has to face the next general election.