Mickel Jackson | Powers of president critical to successful referendum

As we journey the road to the republic, several Jamaicans question how it will affect their ‘bread and butter’ issues. Beyond the symbolic importance of completing the process of decolonisation, the constitutional reform committee (CRC) must answer quite convincingly what the role of Jamaican president as head of state in the republic would be and how people’s lives and our governance structure would be affected.

The public sentiment surrounding the position of governor general is unmistakable. Many Jamaicans view this role as excessively compensated without any real significance, especially in light of the staggering 183 per cent salary increase in 2023, bringing the salary to J$34 million. The public has raised valid concerns where the call for change is not just about a title; it’s about ensuring that our governance structures are aligned with the principles of accountability. If the government fails to propose ‘real powers’ of the president, it may lead the populace to reject the referendum necessary for the change to become a republic.

The powers of the governor general, as laid out in the Constitution and statute, are quite powerful. The degree to which it is effectively exercised is another matter. The governor general appoints some key positions such as those within the commissions of parliament. For example, lawmakers in their wisdom protected the tenure of the executive director and its commissioners against political interference by placing such safeguards in the hands of the governor general. Imagine the possible uproar in today’s current context had this not been the case! The governor general’s formal assent is also required before parliamentary bills become enacted into laws.

Accordingly, a president with similar powers is not merely ‘ceremonial’, so one prefers the terminology of ‘non-executive president’. But let’s be clear, the reserved powers conferred on such a body is crucial to the checks and balances of the executive. In other words, beyond being a symbol of unity, a non-executive president may possess and exercise some discretionary powers of extraordinary intervention as a constitutional arbiter. The CRC must therefore challenge itself to draw on the experience of other republics, not as perfect models but as working systems, each with its own unique challenges and successes, as we create our own.

RESERVED POWERS

In its recommendation for the establishment of the Office of President as the formal Head of State, the CRC’s report stated, “…the powers now exercised by the governor general by virtue of the constitutional relationship with the monarch, statutory provisions and general custom should be exercised by the president of the republic of Jamaica under the reformed Constitution”. Disappointingly, the report did not make clear what of the governor general’s existing powers will be maintained or altered.

Section 60 of the Constitution gives the governor general the power to assent laws or withhold it, without clear procedures guiding whether this is a veto power or merely the governor general returning a bill to Parliament for reconsideration but must assent thereafter. Conventions have dictated, however, that the governor general’s role is merely ceremonial in this respect and he must sign the law. The question is, in the republic, do we wish for this reserved power to be entirely dispensed with or should it be amended? In probing this issue, it was not until Jamaicans for Justice was presenting before the CRC that we were advised that the president will have no such power in the republic. The CRC’s report never articulated this.

Some members of the CRC opined that the suggestion of a role of the non-executive president in the law-making process is undemocratic as it undermines the legislature. I respectfully disagree. The reality is that the president should be utilised as the ‘guardian of the Constitution’ while respecting parliamentary sovereignty. Our history has taught us that parliamentarians will sometimes act on the basis of political expediency without respect for rule of law or the Constitution.

For avoidance of doubt, the president should not have the power to veto bills, but should have the authority to request re-examination of bills. The presidential prerogative to request that the Parliament reconsider a bill, as, for example, in the cases of Ireland and Germany, is merely a formal power relating to the constitutionality of a bill. In Germany, the requirement for the president’s signature on federal laws has been interpreted as meaning that the President must sign if the correct procedural rules have been followed.

In Ireland, the only discretionary power of the president used with any frequency is the right to refer a bill to the Supreme Court. If one examines the most recent constitutional amendment that saw the de facto second extension of the director of public prosecution’s tenure, if the governor general had the power to refer the bill to the Supreme Court for advice prior to signing, perhaps the country would’ve avoided the continued imbroglio surrounding the highest prosecutorial office.

COURTS ARE THERE

We were reminded by the minister of constitutional affairs that the courts are there to rule on the constitutionality of laws should that come into question so there is no need for the president’s intervention in that respect. However, though the supreme court will ultimately rule on the constitutionality of any law, a person is needed to approach the courts for such declaration as the court cannot intervene on its own. If the parliamentary opposition falters in its constitutional role as an effective check against an executive, whether it be due to dereliction of duty, by Westminster parliamentary design or not having the money to challenge a questionable law, it leaves an under-resourced civil society to find those funds to mount a legal challenge. Never mind that we must also prove legal standing to even have the matter heard to begin with!

Therefore, the president, while respecting parliamentary sovereignty as the elected voice of the people, can and should be seen as a source of checks and balances against elected politicians.

Another issue which must be contemplated as we move to a republic is who exercises power over the president. In the CRC’s proposed two-tiered nomination process, the prime minister’s choice of president is guaranteed. While the secret ballot vote may allow for members to vote against their political leader’s choice given anonymity, our political culture does not make this likely. This guarantee of the prime minister’s choice of president increases the possibility that the president acts on the basis of political partisanship or gratitude rather than on a neutrally determined conception of the national interest.

Thankfully, the minister of legal and constitutional affairs has since indicated that the CRC is prepared to make necessary adjustments, a process being led by committee member and noted constitutional attorney, Dr Lloyd Barnett. Nevertheless, the CRC should revisit not only the nomination and election process of the President but also the reserved powers of the president. If the matter of the president’s power is not meaningfully addressed, the constitutional reform process risks indifference or resistance by the people, leading to a possible failed referendum.

- Mickel Jackson is the executive director of Jamaicans for Justice. Send feedback to columns@gleanerjm.com and communications@jamaicansforjustice.org.