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The unfinished business of constitutional reform

BRUCE GOLDING

Sunday, April 22, 2018

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Twenty -three years ago, the then PNP Government and JLP Opposition signed off on a number of constitutional reform measures. This came after many years of discussion and advocacy leading to the establishment in 1992 of the Constitutional Commission, chaired initially by the late Mr Justice James Kerr and, after his passing, by Dr Lloyd Barnett.

Its report, which was submitted in 1993, was referred for consideration by a joint select committe of Parliament, of which I was a member, and which tabled its own report and recommendations in 1995.

The deliberations at both levels involved public consultations and consideration of written submissions and oral presentations. Despite efforts to engage them, the level of interest shown by members of the public was disappointing. The commission held 14 parish meetings, the attendance at which was modest at best, and received 129 written submissions. The joint select committe, for its part, received 32 written submissions. It is of interest to note that the joint select committe which prepared the original Constitution in 1961 received 78 written submissions.

Procedure for altering the Constitution

The procedure for making changes to certain parts of the Constitution — deliberately, and rightly made so — is tedious. Fifty-eight of its 131 sections have entrenched provisions. Any change to these provisions requires a two-third majority in both Houses of Parliament, which, for all practical purposes, means that there must be agreement between the Government and the Opposition. Another 11 sections have deeply entrenched provisions, which means that any change requires the approval of the voters by way of a referendum.

A referendum can take one of two forms. It can be a means of ascertaining the views of the voters on a particular matter and is not necessarily binding.

In a referendum in Belize in 2008, the voters opted in favour of having an elected Senate, but the necessary constitutional changes have never been implemented. On the other hand, a referendum may be required to secure the formal and constitutionally binding approval of the voters for a proposal.

The distinction is important. The referendum that was held in Jamaica in 1961 sought to ascertain the views of the voters as to whether Jamaica should remain in the West Indies Federation. The people, having expressed their majority support for withdrawal, the Government and the Parliament, acting in good faith, took action and enacted legislation to give effect to the wishes of the people.

The Brexit vote in the United Kingdom is another example of such a referendum and its Government is now negotiating with the European Union and preparing the necessary legislation to comply with the expressed wishes of the majority of its voters.

In amending deeply entrenched sections of our Cconstitution, however, the people are not simply expressing a view; their approval is a requirement of the amendment process. We have never done this before in Jamaica and, as will be shown further in this article, the distinction has an important bearing on the process and the design of the ballot.

What has been achieved so far

In the time that has elapsed since the joint select committe tabled its report, only three of the agreed measures have been implemented:

(a) the removal in 1999 of the governor general's power to make an order depriving a person of his Jamaican citizenship if he has acquired citizenship of another country;

(b) the Charter of Fundamental Rights and Freedoms that came into effect in 2011; and

(c) the inclusion in the Constitution in 2015 of provisions to safeguard the local government system.

Several matters remain outstanding, the most important of which are stalled because, although there is broad agreement on the changes that are to be made, there is disagreement as to how they should be applied.

Republican status and a new head of State

For example, it was agreed that Jamaica would become a republic (similar to Trinidad & Tobago) and The Queen would be replaced as head of State by a president who would exercise certain functions and powers in addition to those currently vested in the governor general.

The president would be nominated by the prime minister after consultation with the leader of the Opposition, but would be subject to confirmation by a two-third majority of Parliament voting by secret ballot.

However, there was disagreement as to how that two-third majority should be counted. The PNP Government argued that the vote should be taken with both Houses voting together. The JLP Opposition insisted that the vote should be taken separately in each House to ensure some level of consensus on this crucial appointment, no matter how overwhelming the Government majority in the lower House may be.

Expanded Senate

Similarly, it was agreed that the Senate would continue to be an appointed rather than elected chamber and its membership would be increased from 21 to 36. The prime minister and the leader of the Opposition would appoint 20 and 14 persons, respectively. There was disagreement as to how the other two seats should be filled.

The PNP Government wanted these two seats to be reserved for third parties that nominated candidates in at least 50 per cent of the constituencies in the preceding election and secured at least 7.5 per cent of the popular vote, failing which the seats would revert to appointment by the prime minister and the leader of the Opposition in the usual manner.

The JLP Opposition, on the other hand, argued that the appointment to these two positions should be made by the head of State, acting in his/her own discretion, in order to introduce some non-partisan diversity to the Senate. This was in keeping with a recommendation of the Constitutional Commission.

Appointments to critical posts

It was also agreed that appointments to certain critical positions would be made by the head of State, after consultation with — but not necessarily on the advice of — the prime minister and the leader of the Opposition. The positions to which these arrangements would apply are the chief justice and president of the Court of Appeal, the appointed members of the Judicial Service Commission, members of the Police Service Commission, the public defender, contractor general; and the independent members of the Electoral Commission.

However, there was disagreement as to the role of Parliament in relation to these appointments. The JLP Opposition proposed that the appointments be subject to a two-third majority in each House of Parliament, whereas the PNP Government argued that the appointments should be deemed to be confirmed unless there is a resolution to the contrary approved by a two-third majority in either of the two Houses of Parliament.

There was also disagreement as to the method of appointment of members of the Public Service Commission. The PNP Government sought to retain the current arrangement where the appointments are made by the head of State on the advice of the prime minister, after consultation with the leader of the Opposition. The JLP Opposition insisted that the appointments should be made by the head of State after consultation with — but not necessarily on the advice of — the prime minister and the leader of the Opposition.

Issues fully agreed

There are other matters which continue to languish although full agreement was reached. Among these are:

• entrenched provisions for the impeachment of public officials;

• the requirement that only citizens of Jamaica are eligible to sit in Parliament;

• the requirement that the power of the prime minister to call general elections be subject to the existence of a voters' list that has been updated within the previous six months;

• establishment of a Citizens Protection Bureau headed by the public defender to assist ordinary citizens in the protection of their rights;

• limiting the number of parliamentarians that can be appointed to ministerial positions;

• the right of the chief justice to sit in the Court of Appeal instead of the current arrangement where he can do so only on the invitation of the president of that court;

• provisions to empower individuals and organisations to challenge actions of the Government without having to obtain the consent of the attorney general on public interest grounds, and to widen locus standi to facilitate class action suits;

• express provision for the decisions of the director of public prosecutions to be subject to judicial review;

• entrenchment in the Constitution of the Electoral Commission, contractor general and Citizens Protection Bureau.

Some of these measures, to the extent that they affect deeply entrenched provisions of the Constitution or are to be entrenched themselves, can be effected only with the approval of the voters in a referendum.

Next steps

What, then, ought to be the next steps? The first of these, I suggest, should be to identify and proceed with those agreed measures that can be implemented by Parliament with the requisite two-third majority.

The next step would be to deal with those measures that have to be approved by the people in a referendum. These would include the entrenchment of some of the measures implemented in the first step, for which section 49 — a deeply entrenched section that specifies how changes can be made to the Constitution — would need to be amended.

The cost of holding a referendum is the same as that of a general election — approximately $1 billion. It would make no sense to hold a referendum on constitutional changes unless agreement is reached on all of the issues that need to be referred to the voters. This would require renewed discussion between the Government and the Opposition to resolve the areas of disagreement that have been outlined above.

Voter apathy

The likely level of voter participation is of particular concern. Voter turnout in elections has been declining consistently and dropped below 50 per cent for the first time in the 2016 General Election. A referendum on constitutional changes that would first have had to be agreed by the Government and the Opposition and would therefore be non-contentious, so far as the JLP and PNP are concerned, is likely to attract even less interest among the voters.

Even in The Bahamas, which consistently records a high voter turnout of around 90 per cent in elections, the referendum on constitutional changes conducted in 2016 attracted a turnout of less than 37 per cent. In the case of Jamaica, a turnout percentage in the teens may be all that can be expected.

A situation where major constitutional changes are approved by such a small minority of voters is cause for discomfort. We cry loudly “we want justice”, but we are inexcusably irresponsible when it comes to asserting ourselves by putting in place the mechanisms to secure justice and good governance.

Design of the ballot

How the ballot is to be designed is an issue that also has to be addressed. The approach adopted by St Vincent & The Grenadines in 2009 was to package all the proposed changes in a new draft constitution for which the voters were asked to vote yes or no.

A different approach taken by The Bahamas and Grenada in 2016 was to list each proposed change separately so that the voters were able to decide which ones to approve or reject. The latter approach is more desirable but care would have to be taken in structuring the proposals to ensure that the rejection of one does not effectively nullify the approval of another.

It is here that the distinction, previously referred to, between the two types of referenda is particularly relevant. In an opinion-seeking referendum, the question to be placed on the ballot can be posed in simple, easily understood words to elicit the views of the voters.

In a referendum to approve an amendment to the Constitution, a critical issue is whether it is the exact wording of the amendment that has to be stated on the ballot, bearing in mind that the courts may be called upon to render its interpretation of what the voters actually approved. In fact, section 49(3) of the Constitution states that it is the Bill as passed in both Houses of Parliament that is to be submitted to the voters for approval.

Constitutional lawyers are more competent than I to advise on this technicality, but if that is the case we could be looking at a ballot the size of a long scroll. Voters would be called upon to do more than simply to put their X beside the bell or the head and an extensive public education programme would be required.

The mind of the voter

The experience of other Caribbean countries tells us that we should not presume to be able to foretell how the voters would respond to the issues, even if they appear to be eminently sensible and enjoy the unanimity between the Government and the Opposition.

I was greatly surprised when the voters of The Bahamas in June 2016 rejected proposed constitutional changes that would have prohibited discrimination based on gender and allowed persons born outside of the country to a Bahamian mother to enjoy the same right to citizenship as those born to a Bahamian father.

I was even more shocked when, in November 2016, the voters of Grenada rejected proposed constitutional changes that would have:

• expanded the list of fundamental rights;

• established an electoral and constituency boundaries commission;

• made provision, in the event that one party won all the seats in Parliament, for the leader of the losing party that obtained the highest number of votes to sit in Parliament as leader of the Opposition;

• established fixed election dates and term limits for the prime minister.

Referendum issues

The JLP Government has insisted that the issue of abolishing the right of appeal to the Judicial Committee of the UK Privy Council and adopting the Caribbean Court of Justice as our final appellate court, although it is not required by the Constitution, should be put to the voters by way of a referendum after which, presumably, both Government and Opposition will act in accordance with the preference expressed by the voters.

The prime minister has also stated that the question of the repeal of the buggery law, which does not require any constitutional amendment, should also be put to the voters in a referendum.

Since it would be difficult to justify spending a billion dollars just for such a referendum, it must be assumed that it would take place simultaneously with the referendum required for constitutional changes, but it seems to me that these issues would have to be placed on a separate ballot.

Timing

Timing is also important. A Bill to amend any deeply entrenched provision in the Constitution must spend at least six months in Parliament, not including the time for debate in the House and the Senate, and at least two more months before it can be put to the voters. Any effort now to revive the constitutional reform programme is likely to climax close to the date of the next elections, when the issues to be decided are likely to be smothered by campaign extravagance, unrelated grievances, wild campaign promises, and the influence of those who are best able to “nice up the place”.

Allied to this is the latent fear that a referendum may be used, as was the case in Grenada, as a proxy for a general election, and a loss there would presage a change of government. The recent Caribbean experience does not bear that out. Although the governments of St Vincent & The Grenadines and Grenada lost the referendum on constitutional changes, both were re-elected in general elections less than 15 months later, with the latter winning all 15 seats. Only in The Bahamas, both in 2002 and 2016, was the loss of a referendum on constitutional changes followed by a change of government in elections held less than a year later.

Starting all over again?

It has been a long time since the issue of constitutional reform in Jamaica was last deliberated. It can be argued that too much dust has gathered on those files, that times have changed, new perspectives have emerged, and that we should take a broader look rather than confine ourselves to the thinking and consensus of 23 years ago.

Since that time, advocacy groups have contended that even the new charter of rights is deficient in that it does not protect from discrimination persons with disabilities or mental illness or persons based on their sexual orientation or HIV status. Not surprisingly, calls are being made to amend the definition of marriage in the Constitution, which recognises marriage only as a union between a man and a woman.

The prime minister has also made clear his intention to seek constitutional amendments to establish fixed election dates and term limits for the office of prime minister, measures which I sought to introduce in 2010 but for which I was unable to secure the necessary support from the Opposition.

The suggestion has frequently been made that the mandatory retirement age for judges, which is set at 70 years, should be increased. This could be done by a simple majority in Parliament.

There is also the question as to whether the issue of fiscal responsibility, which was introduced into law in 2010 by amending the Financial Administration and Audit Act, ought to be made a constitutional requirement, a position to which I subscribe. During the deliberations of the joint select committe, former Prime Minister Edward Seaga had sought unsuccessfully to have included in the Constitution a requirement for adherence to a low-inflation monetary policy, the objectives of which were similar to, but not as extensive as, those set out in the fiscal responsibility framework.

These would all be new items added to the agenda.

It may well be that we will have to start all over again but, in doing so, if past experience is anything to go by, further meaningful constitutional reforms may not occur in my lifetime.

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