No 2025 republic
Hugh Small calls on Gov’t to be frank; notes window too tight to complete all processes
Published:Tuesday | April 30, 2024 | 12:10 AMEdmond Campbell/Senior Staff Reporter
Attorney-at-law Hugh Small, KC, says Jamaica will not break ties with King Charles III before the next general election that is constitutionally due by September 2025.
His comments come against the background of a pronouncement by State Minister for Foreign Affairs and Foreign Trade Alando Terrelonge to the British news entity, The Independent, last week, that Jamaica will part company with King Charles III as the country’s head of state in 2025.
Small told The Gleaner that “there is absolutely no possibility of that happening before the next general election”.
Terrelonge told The Independent that the move to split with the British monarch would mean that Jamaica would become “truly liberated” while honouring its African ancestors who were trafficked, brutalised and enslaved by Britain for centuries.
“We remain hopeful that by 2025 we would have completed those reforms and removed the British monarch as the head of our democracy,” the state minister of foreign affairs said.
In a Gleaner interview, Small, the senior legal counsel said: “I think we need to be frank with the Jamaican people and tell them the truth.”
Legislation to amend the Constitution would have to be first tabled in the House of Representatives, said Small, noting that this has to be done within the framework of the existing Constitution of Jamaica.
THREE-MONTH WAIT
A former legislator, Small said the framework requires that the bill would have to be laid on the table of the Lower House and remain there for three months before debate starts on the measure to amend a deeply entrenched or entrenched provision in the Constitution.
Another three-month period must pass between the end of the debate and the passing of the bill in the House.
He noted that the House of Representatives usually rises for summer break in August and reconvenes in September.
“If it is done sometime before August, it has to be a three-month period, and then after that three-month period, the debate can start,” said Small.
He said up to this point, however, nothing has been said or done to “indicate whether when it gets to the House of Representatives [whether] the members will be satisfied to proceed with the debate without setting up a committee to examine the bill”.
According to Small, when the Lower House is dealing with complex legislation the tradition is for the establishment of a parliamentary committee to review the proposed statute.
An examination by a joint select committee could see several areas coming under particular scrutiny not only by members of the House of Representatives, but also by the public.
NATIONAL REFERENDUM NECESSARY
The legal luminary reasoned that proposed legislation to amend the Constitution to remove King Charles III as head of state of Jamaica cannot be “rocketed through Parliament, like the last amendment that was made to the Constitution”.
He explained that the legislation to amend the Constitution will make far-reaching changes that have never been done before and these amendments will ultimately have to get the stamp of approval from the majority of Jamaicans in a national referendum.
“So that institutions just like your own ( The Gleaner), commentators, schoolgirls and schoolboys, farmers, opinion leaders have to understand what is there because, ultimately, there can be no constitutional change of the entrenched clauses, which include getting rid of Charles Mountbatten-Windsor and his family, without Jamaicans voting on the issues and the Jamaican people, up to now, have not had an opportunity to carefully examine all the implications of constitutional change.”
NO ORDINARY LEGISLATION
When the debate is started, presumably the bill will be piloted by the prime minister as it is not an ordinary piece of legislation.
“With this historic legislative experience, it is likely that many members of the House of Representatives, perhaps all members of the House, with the possible exception of the Speaker, will want to speak on it.”
After the bill passes through the House of Representatives, the Constitution stipulates that a period of time has to elapse before debate on the bill commences in the Senate.
He indicates that all members of the Upper House are also expected to participate in the debate as the Senate has a veto power.
Entrenched provisions in the Constitution can only be amended by a two-thirds majority of all the members of each House.
“In all of this, we have to ask ourselves the question, where will the opportunities be for educating the public on the changes?”
Small said the hottest issue that has been debated is whether “you can leave Charles Mountbatten-Windsor and his family, who are the Monarchy, out of our Constitution and still go to the Court of the Privy Council, which is a court set up by the British Parliament. It is mentioned in the Jamaican Constitution but set up by the British Parliament and is essentially the Court of Charles Mountbatten-Windsor”.
The parliamentary Opposition had said that it would not support the removal of the British monarch as head of state without the simultaneous removal of the UK Privy Council as Jamaica’s final court.
The Holness administration had earlier signalled that in the first phase of constitutional reform, it intended to place focus on making Jamaica a republic by de-linking with the monarchy.
Small argued that whereas the parliamentary Opposition’s position is clear on how it wants to proceed with constitutional changes, Prime Minister Andrew Holness “has never taken a position on behalf of the Government on the question of the Privy Council and the Caribbean Court of Justice (CCJ)”.
He said last week there was the spectacle of a British judge saying that he was going to make representation to the Government of the United Kingdom to facilitate judges from the Commonwealth sitting on the Privy Council when cases come from certain Commonwealth jurisdictions such as Jamaica to be decided by the Privy Council.
“I don’t question the sincerity of Lord Reed, but Lord Reed is a judge, and for him to be petitioning the Executive Branch of the British Government to make legislative changes is quite outside of the realm of the separation of powers,” said Small.
At the same time, he noted that Jamaica is already paying its share for both the original and appellate jurisdictions of the CCJ.
He noted that Minister of Legal and Constitutional Affairs Marlene Malahoo Forte has said in Parliament and elsewhere that very shortly the prime minister would make the position of the administration known on the question of the CCJ.
“Mr Holness has stubbornly refused to express himself on it,” he said.