Editorial | Mr Holness’ great opportunity

In the aftermath of the September election, we agreed that his big parliamentary majority placed Prime Minister Andrew Holness in a position to, as Bruce Golding, his predecessor as leader of the Jamaica Labour Party (JLP), put it, pursue “legacy-defining” constitutional reforms. He does not have to worry about potential agitators on a thin back bench.

Now, the lawyer and constitutional scholar, Dr Lloyd Barnett, has not only identified for the prime minister several issues on which he might proceed, and the rationale and logic thereto, but the symbolic value to acting now. In two years, Jamaica will observe its 60th anniversary of Independence – a significant milestone upon which Mr Holness can place a historical imprint.

In his previous administration, Mr Holness had a lengthy agenda of governance and constitutional reforms, including a proposal for a “grand referendum,” in which Jamaicans would vote on removing the British Queen as their head of state; whether they wanted a fixed date for general elections; if the island should accede to the Caribbean Court of Justice (CCJ) as its final court for civil and criminal matters; and if buggery should be removed as a criminal offence.

But for the buggery question, which is not strictly a constitutional matter, none of these issues would elicit a visceral response from the majority of Jamaicans. Except that Mr Holness’ party, under its former leader and the prime minister’s mentor, Edward Seaga, painted itself as a reflexive and emotive critic of the regional court. Mr Seaga is no longer living, and Mr Holness has politically feasible and eminently explainable reasons for extricating himself from that legacy.

As Dr Barnett pointed out in an article in this newspaper on Sunday, it is extremely difficult to get a majority vote in a referendum for even non-controversial topics, if they are tied to controversial issues. It is far worse if a major political party campaigns against the controversial issue.

And as Dr Barnett suggested, Jamaica needs to proceed to what ought to be its next phase of constitutional reform – liberating its Constitution from the vestiges of “colonisation and imperial domination”.

“We should, therefore, identify the essential issues on which there is consensus, and proceed with these,” he wrote.

FOUR KEY ISSUES

In this regard, Dr Barnett identified four issues on which Jamaicans should vote:

• The abolition of the monarchy;

• Enacting the Constitution in Jamaica, by the island’s Parliament;

• Entrenching in the Constitution the Electoral Commission of Jamaica (ECJ); and

• Establishing the CCJ as the final court, thereby abolishing appeal to the Privy Council in the United Kingdom.

Removing the Queen as head of state is a subject on which there has long been bi-partisan consensus. The parties – Mr Holness’ JLP and the People’s National Party (PNP) – once disagreed on whether there should be an executive president, favoured by the PNP, or a partially ceremonial one, akin to the governor general. There is now common ground on the latter.

On the question of repatriating the Constitution, Jamaica’s fundamental law, Dr Barnett said, it is an “appendix to an Order in Council made by the Queen in England” and, therefore, a “subsidiary instrument to a British Order”.

“It is signed by an Englishman (W. G. Agnew), who is unknown to Jamaica and who made no contribution to our political or constitutional development,” Dr Barnett wrote. “This situation is repugnant to our sovereignty and sense of national pride.” Which is this newspaper’s position, too.

The ECJ, which started life more than 40 years ago as the Electoral Advisory Committee, is credited with much that has happened to transform elections in Jamaica from violent engagements to being among the most trustworthy and acclaimed. It was always the intention to entrench the ECJ, which Dr Barnett said should happen now, given its role as an “important safeguard against despotic government”. We agree!

SOURCE OF FRUSTRATION

A PNP attempt in the early 2000s to implement the CCJ by what Dr Barnett described as a “defective legislative initiative,” was an approach that the Privy Council in 2005 ruled to be unconstitutional. It was Dr Barnett who argued the case on behalf of the opponents, although he has favoured the court. It has long been a source of frustration for this newspaper that the JLP has maintained a contrarian position towards the CCJ, blocking consensus on the court.

Our exasperation is deepened because of our belief that Mr Holness has no genuine or deeply held philosophical antipathy, other than political calculus, towards the CCJ, which has not only proved itself jurisprudentially, but would be far more accessible to Jamaicans. In that respect, supporting the court in a referendum would be an easy trade-off against contrived obstreperousness from the opposition on the other issues.

Further, the PM’s deep back bench is insulation against those in his party who still harbour lingering resentments against the CCJ.

Dr Barnett did not mention it, but a reform of the composition of the Senate, including having “independent” members and giving political leaders the right to recall nominees, might be another matter to be placed on the agenda.

Dr Barnett, however, pointed out that putting the technical and legal mechanisms in place for a referendum will take time. To get it done by 2022 would require beginning now. Mr Holness has little to lose and much to gain: a deeply etched place in Jamaica’s history.