Constitutional Reform Committee to advise on office of president

Legal and Constitutional Affairs Minister Marlene Malahoo Forte is hoping to next month name the members of the Constitutional Reform Committee to advise on a process of overhaul 60 years after Independence, including the process of transitioning Jamaica to a republic.

The committee will comprise government and opposition members from the Houses of Parliament, Attorney General Dr Derrick McKoy, Solicitor General Marlene Aldred, as well as constitutional law experts and members of academia, the private sector, and the wider society.

The committee will be supported by a secretariat to be drawn from the ministry, including the permanent secretary, the director of legal reform, the chief parliamentary counsel, the senior director of constitutional reform, a recording secretary, and other technical personnel.

“The committee will review the Constitution of Jamaica against the backdrop of the work done and all of that material will be provided. They will advise on the steps required to be taken to implement the recommendations that were approved and on which consensus remains,” Malahoo Forte said during the sitting of the House of Representatives on Tuesday.

The committee will also examine the provisions of the order in council, the Constitution of Jamaica, and the Jamaica Independence Act to identify provisions that will require amendment and give effect to the reform recommendations.

The consultative committee is expected to advise and make recommendations on the shift from a constitutional monarchy to a republic to include the type of republic and the necessary powers to address Jamaica’s governance challenges.

“We will have to spend some time looking at this. It cannot be a mere cosmetic change, it cannot be. Also, we will do some comparative analysis by examining the process adopted by other constitutional monarchies that have transitioned to a republic,” she explained.

In respect of the office of the president, she said perspectives will be shared on its establishment, nature, qualifications needed and tenure, as well as the staff and the resources for its efficient functioning.

Malahoo Forte said that at a second stage, a review of Chapter Three of the Constitution – The Charter of Fundamental Rights and Freedom – will have to be done.

“This has some urgency around it, but we will put that work to the committee, and some consultation will be done with experts,” she said.

The minister added that the Cabinet is now considering whether perspectives have changed with the passage of time on those matters where consensus was previously reached.

Cabinet has considered and approved a phased implementation of those matters on which consensus remains, starting with a change from a constitutional monarchy to a republic and all the matters for which a referendum is constitutionally required.

“Not all of the matters that people have interest in will be dealt with in the first phase. I can say up front now, as of now, there is no consensus on the final court at this time. I know it is a matter of particular interest, but we don’t want those matters on which there is no consensus and for which there is no requirement for a referendum to delay the work,” Malahoo Forte reasoned.

In response to the ministerial statement, Opposition Leader Mark Golding said he failed to see why the item was not placed on the agenda.

He said he would like to see both the executive and judicial branches of Government decolonised together.

“The monarch requires a referendum, and again, the Government knows that we support Jamaica moving to having a Jamaican head of state. We’ve said it time and time again, and we did the legal work when we were in Government to prepare for it. We would like to see both things done together. Obviously, they won’t be synchronised exactly because the procedures are slightly different, but the legislation can be brought here together, and we can proceed with the parliamentary aspect of it together and then the referendum aspect of it, which is relevant for the executive – the head of state – change that would follow thereafter,” Golding proposed.

He urged the Holness administration to deal with the “burning issue” of decolonising access to justice by making the Caribbean Court of Justice (CCJ) the island’s final appellate court, a process that does not require a referendum but a two-thirds majority in both Houses.

“There’s every reason to support it based on the fulsome track record of the CCJ as a court and the very careful way in which it was established to ensure its independence, both financial and otherwise,” he reasoned.

The Privy Council is Jamaica’s final court of appeal, and Golding argues that the cost of litigating matters in London is prohibitive and out of reach of the ordinary Jamaican, noting that Jamaicans also need a visa to enter the United Kingdom.

Golding argued that he had no objections to going through another deep dive into constitutional reform, however, he did not think that it should be a basis for slowing up the process of actualising the commitments that have been given to the Jamaican people.

“I am extremely disappointed that we are now in mid-November and the Ministry of Legal and Constitutional Affairs was constituted at the beginning of 2022 and we still have so little output from that ministry to move us forward,” he lamented.

Golding added that the The Charter of Fundamental Rights and Freedom is the most recent and substantive amendment to the Constitution and the Government ought to “allow it to mature and let that jurisprudence develop further rather than seek to tinker with it, especially when I know that this Government has a predilection for procedures like the state of emergency as a routine policing tool”.

Malahoo Forte said on the issue for matters for which there is no consensus, the Government could afford to go down the road that the current Opposition took when it was in Government.

“Because given its passion for the issue, understandably so, it sequenced the reform step by placing the bill for the judicial branch first and it did not yield the result. Regardless of where we stand on the issue, I think there is some wisdom to be derived and some lessons to be learnt from attempts in the past, and if your complaint is about the pace of reform and not delaying it, then it should stand to reason that we shouldn’t disagree to proceed on the matters where there is consensus,” the minister explained.

She added that the issue of the final court is not an easy one as Golding was making it out to be, but she could agree on one point that it was “utterly offensive” for there to be a visa requirement for Jamaicans to access their final court.

“We will have to have a conversation in the unlikely event that when we go to the people, we do not get the vote. It is my hope that the two sides of the aisle will go unitedly to the people,” said Malahoo Forte.

judana.murphy@gleanerjm.com