Jeanette Calder | Constitutional reform – the road ahead

Jamaica Accountability Meter Portal (JAMP) welcomes the start of an official process for constitutional reform. Among the mandates given to the Constitutional Reform Committee is to “assist in coordinating the required parliamentary cross-aisle and nationwide consultation and collaboration during the various phases of the reform work”.

JAMP anticipates that this will mean the fullest possible consultation as opposed to just information sharing of foregone conclusions based on committees and consultations of yesteryear or the collective wisdom of the newly appointed reform committee. The Government must be intentional in canvassing groups representing workers, professional bodies, business, youth, seniors, women and the widest range of non-governmental and community-based organisations. An important gauge of how meaningful and broad-based the consultations will be, is the intended time frame for the phases of the reform agenda set out by the Government. The committee should advise the public in short order what phased timetable is proposed so that stakeholders may respond.

A deep, broad-based programme of public consultation and education is indispensable to achieving a Constitution that enlarges citizens’ rights and protections and which deepens and protects participatory and accountable democratic governance.

HURRIEDLY MAKING DECISIONS

The 1962 Independence Constitution came out of a process of a few people hurriedly making the decisions for the many. As described by Professor Trevor Munroe in his seminal book The Politics of Constitutional Decolonization: Jamaica, 1944-62, the Joint Committee of Parliament that drafted the constitution heard presentations from the public only in the 10th of its 12 sittings. The legislators decided to allow 30 days for public submissions. Seventy-eight submissions were received and vetted by a two-man committee which met only twice. In the first three hours of its first sitting, the joint committee decided without debate to accept what its chairman, then Premier of Jamaica Norman Manley, called the “fundamentals” – the British monarch as Jamaica’s head of state and a legislature on the Westminster two-chamber model.

On February 1, 1962 the proposed Constitution was taken by a bipartisan delegation to London where it was approved after substantial amendments. The end product was a constitution without meaningful public consultation and debate, a missed opportunity in the early shaping of the nation.

Each reform period is a new opportunity to deepen the process. The participatory approach of the constitutional reform process of the 1990s benefited from a Joint Select Committee of Parliament on Constitutional Reform and a Constitutional Commission that comprised representatives from both political parties, the Jamaican Bar Association, Press Association of Jamaica, The University of the West Indies, trade unions, church organisations, teachers’ organisations, women’s organisations, private sector organisations, farmers’ organisations, and youth organisations. The commission consulted widely with citizens.

JAMP urges the current Constitutional Reform Committee to adopt a similar, representative strategy possibly through working groups with broad representation as well as through all-island town hall and other face-to-face meetings, use of traditional and social media and other strategies.

MUCH UNFINISHED BUSINESS

While there is significant, bipartisan, national agreement that it is past time for ending the colonial vestige of the British monarch as the Head of State, the question of what type of Head of State and kind of Republic we want to have cannot be based on the recommendations of the 14 CRC members alone. The public has a right to an explanation of different models, their pros and cons and to have a say in which model is most desirable to go forward for approval.

In addition to such issues there is much else that remains as unfinished business.

An April 2017 report titled Our Constitution, Unfinished Business – An Analysis of Constitutional Reform in Jamaica undertaken by the Jamaica Civil Society Coalition (JCSC) and Caribbean Vulnerable Communities Coalition (CVC) and documented by consultant, Danielle Andrade, attorney-at-law. It shared recommendations from the general public and parliamentary committees that emerged from previous initiatives, such as:

• Repeal of the Jamaica (Constitution) Order in Council of Jamaica 1962 and enactment of the Constitution by the Jamaican Parliament.

• Reframing the Constitution in easily understandable language.

• Removal of the British Monarch as the Head of State.

• Provisions for impeachment of parliamentarians and public sector officials, term limits for the prime minister.

• Expanded bill of rights to include other fundamental rights and freedoms such as the right to health/healthcare, right to education up to the tertiary level.

• Entrenchment of the system of local government.

• Entrenchment of the Electoral Commission of Jamaica and the Office of The Public Defender in the Constitution.

• Oversight of elections; party/campaign financing provisions.

• Whether the Privy Council should be replaced as Jamaica’s final Appellate Court.

• Expansion of the anti-discrimination provisions to include grounds such as language and health status, among others.

Although many of the recommended reforms over the decades came out of consultations with, and/or submissions from citizens, the JCSC/CVC 2017 report shows that only few made it into the final decisions.

To illustrate, the report shows that “of the 49 proposals presented by the 1991 Constitutional Commission, only 17 resulted in amendments”. Most but not all of the amendments that were accepted were in relation to introducing new rights and virtually none dealt with the structure of government and political process. It is possible that the pre-existing bent of the executive and parliamentary majority prevailed in the end.

WILL BE DIFFERENT

JAMP hopes that the current reform process will be different. Several signals have been sent by the Government of Jamaica of its desire to effect constitutional changes to more easily pursue its use of measures such as states of emergency, restrictions to the right to bail by accused persons and the use of extended periods of detention without charge as key tools in its crime-fighting strategy. The risk that these desired outcomes could impact the main thrust of the ultimate decisions for amendment of the Constitution must be acknowledged, managed and mitigated by the reform committee.

The public must and we urge us all to pay close attention.

JAMP believes that in addition to provisions to expand citizens’ rights and protections, reforms to be prioritised are those to improve governance, strengthen oversight and accountability and ensure a more participatory model of democracy. These sentiments were echoed in all of the seven public constitutional reform sessions we conducted (June 2022 to February 2023) and included the need for provisions for impeachment as well as recall of MPs, fixed election dates, term limits and in particular a redesign of the relationship between the legislature and executive (the cabinet).

Regarding the method, JAMP implores the Government for:

a) A publication of the expected timeline of the review and reform process.

b) A specific timeline for public consultations and an indication of the intended reach.

c) A prompt start of the public consultative process an equally prompt publication of the threads of their discussions and the outcomes.

d) A period of at least six to nine months of intensive national discussion and consultation.

e) A heavy emphasis on grassroots events, for example, community meetings in every parish capital where recommendations are canvassed and brought back to the Constitutional Committee for consideration.

f) A process of parliamentary submissions be established and publicised as but one important avenue for gauging and documenting public opinion.

These recommendations are made against the backdrop of the undemocratic genesis of Jamaica’s 1962 Constitution, making it even more critical that this time around, that the people be intimately involved as we seek to fashion a Constitution and a country that is really, truly ours.

- Jeanette Calder is executive director and founder of Jamaica Accountability Meter Portal , which designs digital tools to help citizens improve governance and accountability. Send feedback to jeanettec@jampja.org or columns@gleanerjm.com