By Dylan Vernon, TIME COME #9, 23 July 2024.
For those in the Caribbean expecting inspiration from the Report of the Constitutional Reform Committee (CRC) of Jamaica, don’t hold your breaths. After a fourteen-month process, the fifteen-member CRC released its Report in May 2024, and it is currently awaiting debate in Jamaica’s Parliament. The cautious tone of the recommendations is not surprising given the elite approach that characterised the CRC membership and much its process. Could it be too that the failure of advancing progressive recommendations in other CRC processes led to bland conservatism? Witness what happened, for example, in St. Vincent & the Grenadines (2009), in St. Lucia (2011), in Grenada (2016) and most recently in Chile. Whatever the reasons, it is another opportunity lost for progressive and substantive constitutional decolonisation in the Caribbean. Is this the same familiar road that Belize and the rest of the Caribbean are going down?
A Top-Down Process in Jamaica
Apart from Belize and Jamaica, constitutional reform processes in CARICOM states are now underway in Barbados, , St. Lucia, Guyana and Trinidad & Tobago. St. Kitts & Nevis has promised one. Antigua & Barbuda and St. Vincent and the Grenadines have promised to start a process to ditch the King as Head of State. Dominica is about to announce legislation on electoral reform. Constitutional reform has been long promised in Haiti. Outside of CARICOM, the Dominican Republic has started a constitutional reform process. From this very large batch, Jamaica is the first to get a public report from its CRC.
Those of us who have worked with social change and reform campaigns know well that the process really matters. From the very time of the launch of Jamaica’s CRC in March 2023, the process in Jamaica has been critiqued for its limited time frame, narrowness of CRC membership and its top-down approach. In terms of the membership of its CRC, the Government of Jamaica took the elitist approach of appointing a small number of experts. Eleven or 73% of the 15 members are lawyers and only four are from civil society organisations.
While the Jamaica CRC held town hall meetings, sessions with organisations and media appearances, these were relatively few in relation to Jamaica’s 2.8 million population. Tellingly, the CRC received submissions from only 28 individuals and organisations. Some decisions on recommendations, such as whether Jamaica should become a republic, and what type, were made by the CRC before consultations even began. One takeaway seems to be that Jamaicans were not sufficiently sensitised and engaged for meaningful consultations.
Becoming a Republic but Keeping the Privy Council
Replacing the British monarch as our Head of State must be more than symbolic – as important as this is for decolonisation. Changing nothing else will mean just swapping one figurehead with another. This is just what the Jamaica CRC is recommending. Both major political parties in Jamaica have publicly supported this course of action. Indeed, the CRC itself was mandated to focus on this ‘republic’ aspect. Matters related to ‘republic’ take up 33 pages of the 52-page recommendation section of the Report.
In short, the CRC proposes that Jamaica should become a parliamentary republic, that the President be selected by a 2/3 majority in both parliamentary chambers (not directly elected), and for the President to have exactly the same ceremonial powers as its current Governor-General. Yawn. Based on the current Constitution of Jamaica, this package will need to be approved by majority vote by the people of Jamaica in a referendum. Since recent polls show that Jamaicans support the move to a republic and given that the two major political parties agree, the road to the Republic of Jamaica in 2025 seems well paved.
Or does it? In a schizophrenic twist, the Jamaica CRC could not reach consensus on the issue of replacing the Judicial Committee of the Privy Council (based in the United Kingdom) with the Caribbean Court of Justice (CCJ) as the apex Court. This issue has long haunted Jamaica, as both major political parties have historically taken opposing positions: The People’s National Party (PNP) being in favour of the CCJ and the Jamaica Labour Party (JLP) wanting to keep the Privy Council.
The current position of the now governing JLP is that the matter must be dealt with separately from that of becoming a republic. The opposition PNP insists, with good reason, that these two matters of institutional decolonisation be taken together. As Dionne Jackson Miller contends, this one issue of partisan difference could derail the whole reform process.
Other Constitutional Matters
‘Other matters’ is the rubric used by the Jamaica CRC to refer to all other non-republic constitutional issues. These get much less ink and even more tinkering treatment than matters of republic. The recommendations on ‘other matters’ also reflect the implications of the CRC’s core endorsement of the parliamentary cabinet system with just a cosmetic change from a British King to a Jamaican President as Head of State.
Key elements of these conservative recommendations include:
- Inserting a preamble.
- Inserting national symbols.
- Renaming the Jamaican Privy Council (akin to Belize’s Advisory Council) the President’s Council but with no change in powers and functions.
- Limiting citizenship by descent to three generations. Come on, its 2024.
- Extending the disqualification from parliament to include convictions for offences of treason, fraud or violence, where the person has been sentenced to a term of imprisonment of 18 months or more. This has flavours of the Eleventh Constitution (Amendment) Bill in Belize.
- Fixing the life of parliament at five years but giving the Prime Minister the right to set the date within a period not exceeding three months. In effect, there would be no fixed date, but a very short window of prime ministerial discretion.
- Increasing the number of senators from 21 to 27, including the addition of three civil society senators. However, the appointees of the governing party would retain a majority of in the Senate.
- Entrenching the Electoral Commission and the Office of the Public Defender in the Constitution but not the Office of the Ombudsman.
- Stating that Jamaican citizenship should be essential for membership in the Parliament. However, the CRC did not directly address the thorny issue of dual citizenship in relation to membership in Parliament.
- Removing constitutional references to Commonwealth citizens (including ability to participate in elections) and putting these in ordinary law.
I find it quite peculiar that Jamaica’s CRC seemed to self-censure or temper a few of its recommendations if it perceived that the two major political parties would not agree. For example, it did not make clear recommendations on removing the Privy Council as the apex Court and on dual citizenship in relation to membership of Parliament – noting the partisan divide on them. The CRC also conditioned its recommendation on the fixed period for the life of Parliament with “in the event that there is consensus between the two political parties” (page 38). If an independent CRC is not going to make the recommendations it wants, what is it all about? Let the political parties and the public know your real findings and thinking of the majority. Why not take all the political space you are given as an independent commission?
If Jamaica’s CRC continues its review of the Constitution, as contemplated in its Terms of Reference, there could be more recommendations in the future. Unfortunately, the Report does not make this very clear.
Comparisons with the PCC in Belize
In Belize, our messy constitutional reform process is slated to end in November 2024 after a six-month extension – a total of two years. Will ‘double the time’ than in Jamaica result in a better people’s consultation process and in more progressive recommendations?
On paper, Belize’s 25 member People’s Constitution Commission (PCC) is much less top heavy with 19 or 76% of the commissioners representing civil society organisations. On the surface, the Jamaican approach may make for quicker decision-making, but at the expense of deeper people’s participation. It’s too early to evaluate the Belize process – no consultation numbers have been released as yet and there is little news recently on the next steps. However, that there will also likely be accusations from some quarters of the PCC failing to effectively educate and engage the Belizean people.
The most likely end game scenario is that the key message from Belize PCC will be similar to that in Jamaica today: don’t rock the constitutional boat but give it a bit of paint. I expect the PCC to recommend that Belize becomes a republic a la Jamaica and Barbados: i.e., the rest of the system will remain intact. The current government’s loud promises for meaningful constitutional reform could easily end up being mostly limited to replacing the King as Head of State with a Belizean President, but not with much else of substance.
If so, the ‘constitutional reform box’ in the governing People’s United Party’s manifesto would still be ticked off to great fanfare. And to deflect any risks of offending voters who may want to keep the King, there could be a referendum just on the republic issue. Such a referendum is not constitutionally required but has been politically promised. The outcome could go either way based on recent polling and based on what a desperate Opposition could do.
Then, there may be some other minor constitutional tinkering here and there in a continuation of the failed incremental approach. I hope I am wrong. But the tea leaves point in that direction. (Note too that some of the influential religious institutions have already happily accomplished their core task of not only getting government to commit — outside of the PCC process — to keep ‘the supremacy of God’ in the Constitution but to actually expand on it).
I cross fingers that there are, indeed, some PCC commissioners who are pushing or will push for more substantive reforms that address some of the critical issues of democratic decay facing the nation. I have already shared some of my own proposals in past TIME COME pieces, including in Takin Bout a Revolution: Fifteen Proposals for Constitutional Reform.
The Belize PCC and other CRCs in the Caribbean must take all the political independent space their mandates provide. They must engage and heed the people. Let us not continue to lose opportunities to decolonise our constitutions. At the very least, strive to be bolder and more innovative than Jamaica.