Rosalea Hamilton | Are we reforming our Constitution to achieve people sovereignty?

Since the announcement of the establishment of the Constitutional Reform Committee (CRC) on March 22, there has been much discussion about the involvement of the Jamaican people in reforming our Constitution. The discussion has intensified since April 14, when Minister Marlene Malahoo Forte announced that, after holding five meetings, the CRC arrived at a consensus to recommend the abolition of the constitutional monarchy as the form of government to be replaced by the Office of President of the Republic of Jamaica.

The minister also announced the consensus reached in the selection of the president – by nomination of the prime minister, after consultation with the leader of the Opposition, to be confirmed in the Parliament. Encouraging stakeholders to urgently forge consensus in order to draft a bill for Parliament, she stated “I want to table my bill next month, and it flows from there.”

The response to the announcement from Jamaicans, at home and abroad has been intense. The main responses relate to how the voice of the Jamaican people will be heard in reforming our Constitution, the need to clarify and make transparent the process (including timelines), and specific changes to the Constitution that people want to see. The Montego Bay Public Consultation on April 26 is a move in the right direction. But it should have been held BEFORE, not AFTER, the announcement, according to the 2005 Consultation Code of Practice for the Public Sector. However, in the absence of a timetable for similar consultations across Jamaica and other forms of public engagements, more questions are raised about the scale and extent of public engagement before the bill is tabled next month. Having heard the people’s voice in Montego Bay and in the media, the minister has declared that the process cannot be rushed, because of the important issues to be addressed. A phased approach to the promised “comprehensive” constitution reform is an excellent strategy.

MANY FORMS OF REPUBLIC

For me, a core concern relates to the conception of ‘Republic of Jamaica’ announced by the minister and the CRC. There are many forms of republic. A public education campaign is essential to clarify this, and would aid the public in understanding the referendum decision to be made. At the post-Cabinet media briefing on April 26, Information Minister Robert Morgan informed the public that the question for the people to decide is: “simply should we become a republic or should we remain a constitutional monarchy?” I suggest that the question for the Jamaican people to decide should be rephrased: should we become a republic where the Jamaica people are sovereign; or should we remain a constitutional monarchy where the executive is sovereign? The answer to this will inform the key constitutional changes that we make. If we choose a republic where the Jamaican people are sovereign, the key changes should include provisions that give Jamaicans the power to influence decisions that affect their lives, in addition to changes to remove the King as head of state.

Jamaicans should note that a ‘republic’ can be created by constitutional changes to remove the King as head of state, leaving the inherited governance structure intact. But our history should guide us about the wisdom of such a decision. In the past, the real decision-making power was in the hands of the British monarchy and British government. They used that power to make law, including constitutional law, and policy to serve their own interest and the interest of a few, and, in so doing, they created a model of governance to perpetuate the institutions of slavery and colonisation. In 1961, Norman Manley noted that “about 90 per cent of the provisions of our Constitution are derived from the British model.” This was a telling statement! Since Independence, the decision-making power and governance structure embedded in the Constitution have not changed significantly. Our independence Constitution shifted power from the British monarch to the Jamaican executive, mainly cabinet ministers, led by the prime minister, who has the real, effective power. Over the past 60 years, Jamaicans have experienced ‘executive sovereignty’, where the decision-making power has been used to serve the interest of a few and not the majority.

REAL QUESTION

The real question for Jamaicans in reforming our Constitution and creating a new republic is whether we want to create a republic by removing the King as head of state and to continue this highly centralised, top-down approach to governance, where unfettered power and authority lies in the hands of the executive. Many former British colonies have gone that route, and we can learn from their experience of persistent executive dominance. In my view, the central issue is whether we, the Jamaican people, want a bottom-up approach to governance, where the real power resides in our hands, exercised through our representatives in Parliament and through processes like participatory budgeting where we have a direct say.

If we want bottom-up governance, I suggest there are several key constitutional changes to the structure of power in the Parliament that must be made. These include changes in the House of Representatives to create the ‘People’s House’. Constitutional provisions should strengthen the voice of the people indirectly through more effective oversight of the executive by the non-executive legislators, and directly by the people through public petitioning of the legislators. Members of Parliament must represent the will of the people and not the will of their party leader. Changes should also include an elected senate that can strengthen oversight of the executive and facilitate public petitioning to complement the role of the House in representing the will of the people.

The decision by the CRC to replace the King with the Office of President of the Republic of Jamaica has focused public discussion on whether we should have an executive or ceremonial president, or no president at all. I suggest we should focus on the role and responsibilities we want to give a president acting on our behalf. For example, if we want to strengthening public participation and deepen our democracy, the office of president could provide critical support for the public petitioning process or participatory budgeting. Such a president could be appointed by representatives of the people in a reformed House and senate, charged with the responsibility to not only sign legislation but, importantly, to undertake specific tasks to empower the people of Jamaica. In our discussion about electing an executive president, we should be very careful that in the end we don’t end up with a ‘One Don’ president or prime minister, with even more unfettered powers. Effective oversight and control of the executive by the people and the people’s representatives in Parliament are critical.

It is these and other constitutional changes that must be discussed, and a national consensus forged, to create a meaningful Jamaican republic that, ultimately, can lead to a better quality of life for the Jamaican people. This is what it will take to truly ‘Jamaicanise’ the Constitution … make Jamaicans sovereign!

Rosalea Hamilton, PhD, is founding director, Institute of Law & Economics. Send feedback to rosaleahamilton@gmail.com