Editorial | Constitution reset

Prime ministers’ contributions to Jamaica’s Budget debates tend to be smorgasbords of feel-good policies and programmes – and explanations of why the things their governments do are in the interest of citizens, even if they do not appreciate it at the time.

We expect that Prime Minister Andrew Holness will maintain that tradition next month, when he speaks on his administration’s planned J$1.3-trillion expenditure for the 2025-26 fiscal year. Except that the smorgasbord is likely to be larger than the norm, given that he must face a general election before year end.

One matter on which this newspaper hopes Mr Holness will provide clarification is his, and his administration’s, position on the Caribbean Court of Justice (CCJ) and how they intend to proceed with transitioning Jamaica from a monarchy to a republic.

As the prime minister contemplates the matter before he speaks, we make these suggestions:

• He should place the current constitutional reform process on pause, including suspending the meetings of the Joint Select Committee of Parliament now reviewing the legislation to remove the British monarch as sovereign of Jamaica. That committee is effectively moribund, given the Opposition’s boycott of its sittings.

• The prime minister should announce that, should his Jamaica Labour Party (JLP) retain the Government after the election, he will cause a reset of the constitutional reform discussions under a new and independent chairman, who is capable of coaxing the political parties, the JLP and the People’s National Party (PNP), to a compromise on the questions on which they are stuck. That is primarily what should be Jamaica’s apex court, and if Jamaica can, or should, ditch the British king, yet keep the king’s Privy Council as its final court.

PERSISTENT FALLACY

This newspaper has long and consistently been a proponent of Jamaica’s accession to the criminal and civil jurisdiction of the CCJ, to which the island, as a member of the Caribbean Community (CARICOM), is already a party in its original jurisdiction, interpreting the CARICOM treaty. The CCJ’s ruling on CARICOM matters and in its creation of community law (as in the Shanique Myrie case) are binding on Jamaica. Notwithstanding, there is a persistent fallacy in Jamaica of passing off the CCJ, with respect to its original jurisdiction, as just ‘a trade court’.

The philosophical considerations surrounding the CCJ apart, there are good political reasons for Prime Minister Holness to be deeply introspective on the constitutional reform question, which has become an even more politically fraught issue.

Cross-party consensus exists on Jamaica becoming a republic, with a ceremonial, rather than executive, president. Just shy of two years ago, Mr Holness named a Constitutional Reform Committee to advance that matter in what the Government said was the “first phase” of the reform project. The legal and constitutional affairs minister, Marlene Malahoo Forte, chaired the committee. Bills to achieve this goal were recently tabled in Parliament. These are what are supposed to be under review by the parliamentary committee.

But passage of bills of this type is a complex and tedious legislative process. Because the monarch as Jamaica’s head of state is a deeply entrenched clause in the island’s Constitution, the bills have to stay on the table of Parliament for three months before being debated, and a similar period before being voted on. Passage must be with a two-thirds majority of the members of both Houses of Parliament, after which the legislation must be put to a referendum. Beyond those complexities is the PNP’s insistence that Jamaica should leave the Privy Council and accede to the CCJ at the same time that it abandons the monarch.

Leaving the Privy Council is a relatively simple legislative process. However, imposing a new superior court above the domestic Court of Appeal, while it does not require a referendum, needs a two-thirds majority vote in the legislature, which the JLP, when in Opposition, withheld. It was against accession to the regional CCJ and in favour of remaining with the Privy Council.

WORK TO BE DONE

It is not clear if, or how, Mr Holness’ views on the CCJ has evolved, despite Minister Malahoo Forte’s promise 16 months ago that the PM would bring clarity to the matter “in short order”. In recent times, Ms Malahoo Forte appears to have articulated more than one position for her party and Government, which has been further complicated by last week’s Throne Speech in Parliament setting out the Government’s priorities for the new legislative year. Passing the constitutional amendments was among them.

There is also the work to be done on the “next phases’ in constitutional reform, including the judiciary, of which the Government said: “The people of Jamaica will also be provided the opportunity to have their say on the matter of Jamaica’s final court.”

This suggests that a referendum is being planned. Yet, citizens do not know what court the Government has in mind: the Privy Council, the CCJ, something entirely new, or removing the Privy Council and leaving the Court of Appeal as Jamaica’s apex court.

The Government’s calculation may be that in an election campaign, it can extract a political price from the Opposition if it was perceived to be thwarting Jamaica’s move to a republic. However, given the low levels of trust in Jamaica, the better option at this point, we feel, is a reset of the constitutional reform under the leadership of someone who commands the respect of the political players.