Jamaica’s Transition to a Republic: Process Matters
As Jamaica pushes to become a republic by 2025, the Constitutional Reform Committee faces scrutiny over its composition, which has the potential to overshadow its work. Process issues have also arisen concerning the prioritization of becoming a republic over other constitutional reforms and the need for consensus on the method of presidential appointment, offering lessons for other nations considering similar reforms. Ensuring a representative committee, separating the issue of becoming a republic from other reforms, and maintaining government-opposition collaboration may be key for Jamaica's successful transition – writes Dr. Derek O’Brien
Whilst attention across the Commonwealth has been focused on the likelihood of the eight remaining realms in the Caribbean – Antigua, The Bahamas, Belize, Grenada, Jamaica, St Kitts, St Lucia, and St Vincent – becoming republics following the death of Queen Elizabeth II, Jamaica has taken the lead by appointing a Constitutional Reform Committee (CRC 2023). The CRC 2023, which started its work in March 2023, is charged with making recommendations for the country’s transition to a republic. Even though the CRC 2023 has only met a handful of times, and has not yet held any public meetings, there are already important lessons to be learned from the Jamaican experience as it seeks to become a republic by the next general election in 2025. The first concerns the composition of the CRC 2023 and how this may impact upon how its recommendations are received. The second concerns the prioritisation of becoming a republic above all other constitutional reforms. The third concerns the need for consensus on the manner of appointment of the putative President.
Composition of the Constitutional Reform Committee
The process that led to the adoption of Jamaica’s 1962 Independence Constitution has been subject to much-deserved criticism for its lack of autochthony. A draft constitution was produced in great haste by a Joint Committee of Parliament with very little input from members of the public. That draft was then approved at the Independence Conference in London attended by representatives of the governing and opposition parties and chaired by the Secretary of State for the Colonies. This process was driven by the political elite with very little opportunity for meaningful public consultation and debate. In 1991, determined not to repeat this mistake, when Michael Manley’s People's National Party appointed a Joint Select Committee of Parliament to review the 1962 Constitution it also established a Constitutional Review Commission (CRC 1991) which was charged with mounting a public education programme and undertaking widespread public consultation on potential reforms to the Constitution. In order to include the widest possible range of views, membership of the CRC 1991 comprised, in addition to politicians from the governing and opposition parties, members of the Jamaican Bar Association, the Press Association of Jamaica, and the University of the West Indies, as well as members of numerous organisations representing trade unions, churches, teachers, women’s groups, farmers, youth and the private sector.
By contrast, membership of the CRC 2023 is drawn from a much narrower pool. Eleven of its 15 members are lawyers, leading to criticism that membership of the CRC 2023 is not sufficiently diverse “to effectively inform the process”. Two appointments, in particular, have attracted considerable controversy, albeit from different ends of the political spectrum. The first is the appointment of Lieutenant Rocky Meade as co-chair of the CRC 2023, which has been criticised by the highly respected NGO Jamaicans for Justice. As its Executive Director, Mickel Jackson, pointed out, Lieutenant Meade was the leader of operations of the ‘state-sanctioned Tivoli Massacre’, which was an armed conflict between Jamaica’s military and police forces and a drug cartel in the Tivoli Gardens area of Kingston in 2010 in which up to 70 people were killed, at least three disappeared, and approximately 4,000 were arbitrarily detained. In Jackson’s view, Lieutenant Meade’s involvement in the later phases of the constitutional reform that include reviewing the Jamaican Charter of Rights and Freedoms is potentially problematic.
The second contentious appointment is that of Professor Richard Albert, a highly respected Canadian comparative constitutional law scholar based at the University of Texas. His selection has been criticised by two Christian groups, Jamaica Cause and the Jamaican Coalition for a Healthy Society. Their objections are partly on the grounds that he is not a Jamaican national and thus should not have a role to play in reforming Jamaica’s Constitution, but are principally based on their belief that he exhibits ‘a distinct pro-LGBT and pro-abortion bias’, though they do not give any further details about the basis of their claim. Though Professor Albert’s appointment has been defended by the Government and by his fellow CRC 2023 member, Dr Nadeen Spence, who has praised his expertise, it is believed in some quarters that the late appointment of Dr Elaine McCarthy, the President of the Jamaica Umbrella Group of Churches (whose members comprise mainly Christian fundamentalists), was an attempt by the Government to deflect these criticisms and assuage church groups opposed to Professor Albert’s appointment. It remains to be seen whether this will be enough to quell the discontent surrounding Professor Albert’s appointment, but the appointment of a non-national, even someone as distinguished as Professor Albert, always had the potential to be an own goal in the context of a process of constitutional reform centred on the ‘repatriation’ of the Jamaican Constitution.
Given the current emphasis on participatory democracy as a constitution-making norm, it is surprising that the Prime Minister drew so heavily from the legal community when appointing the Constitutional Reform Committee.
Given the current emphasis on participatory democracy as a constitution-making norm, it is also surprising that the Prime Minister drew so heavily from the legal community when appointing the 2023 CRC and did not follow the example of the more diverse CRC 1991. Out of the 15 CRC 2023 members, only five can be said to represent the broader community: two representatives of church groups; a representative of the National Reparations Committee; a political and social commentator, representing civil society; and a youth advisor. Though it is perhaps understandable in the light of the vitriol heaped upon Professor Albert for his allegedly pro-LGBT views, it is nonetheless disappointing, in terms of diversity and inclusivity, that the CRC 2023 contains no representative of the LGBT community. This is a community that was poorly served in the previous round of constitutional reform that led to the introduction of a Charter of Rights and Freedoms in 2010. The Charter replaced Chapter 13 of the Independence Constitution and conspicuously failed to prohibit discrimination on the ground of sexual orientation, immunised from constitutional challenge laws criminalising homosexuality, and ensured that the right to marry only extended to opposite-sex couples.
Prioritising the transition to a republic
When Jamaica initially embarked on its current constitutional reform project (previously analysed on ConstitutionNet) the original plan was to proceed in phases. The first phase would focus on the repatriation of the Constitution, the establishment of a republic, and the amendment of all other entrenched provisions of the Constitution requiring a referendum (such as the expansion of the Senate). Later phases would focus on the review of the 2010 Charter of Fundamental Rights and Freedoms and any ordinarily entrenched provisions of the Constitution deemed necessary or desirable to amend. The plan was thus to have just a single referendum to cater for all those provisions of the Constitution which could only be amended by means of a referendum.
The Government announced in late April that the first phase of constitutional reform is to be limited to the issue of whether Jamaica should become a republic.
However, the Government announced in late April that the first phase of constitutional reform is to be limited to the issue of whether Jamaica should become a republic. The CRC 2023 Chair, Marlene Malahoo Forte, Minister of Legal and Constitutional Affairs, explained that this aims to ensure that a referendum can occur and legislation enacted for the transition to a republic by the time of the next election — but it comes at a cost. Former Prime Minister Bruce Golding estimates that holding a referendum would cost over $1 billion. If, as it now appears, there will be separate referendums on whether Jamaica should become a republic and the other proposed reforms to the Constitution which require a referendum, the cost of constitutional reform will, at the very least, double. This seems, however, to be a price which the Government is willing to pay. In reaching this decision the Government was likely influenced by the decision of the Government of Barbados to separate the issue of becoming a republic from other reforms to the Constitution and to proceed in two stages. The first phase involved passing the necessary legislation to become a republic, and only after this was completed did it proceed to the second stage of establishing a Constitutional Reform Commission to explore more wide-ranging reforms to the Constitution. The Government might also have been influenced by the experience of constitutional reform in St Vincent and the Grenadines in 2009, The Bahamas in 2016, and Grenada in 2018, where voters were asked to vote on multiple proposals for reform in a single referendum, ultimately leading to the rejection of all proposals.
Manner of appointing the President
Although both the Government and Opposition agree that Jamaica should become a republic, they have yet to reach consensus on the manner of the President’s appointment. The Government are proposing that the Prime Minister should nominate a candidate, after consultation with the Leader of the Opposition, but the nomination must be approved by a two-thirds majority of the House of Representatives and the Senate in a joint sitting. Whilst the Opposition agrees that the Prime Minister’s nomination must be approved by both Houses of Parliament, they contend that approval must be by a two-thirds majority of both the House of Representatives and the Senate, sitting separately. This is to ensure that the choice of President is supported by the two major political parties in Jamaica. Otherwise, the Government, which already chooses 13 out of the 21 members of the Senate, could force through its nomination for President provided it has secured at least 43 of the 63 available seats in the House of Representatives, as occurred in the last general election when the Jamaica Labour Party won 49 seats in the lower house.
The arrangements proposed by the Government differ from those in place for the other three republics in the region where the President is not directly elected.
Interestingly, the arrangements proposed by the Government differ from those in place for the other three republics in the region where the President is not directly elected – Trinidad and Tobago, Dominica, and Barbados. In Trinidad and Tobago, the President is elected by a secret ballot of an electoral college (consisting of all members of the House of Representatives and the Senate), with the candidate who is unopposed or who obtains a simple majority of votes being elected President. In Dominica, if the Prime Minister and Leader of the Opposition agree upon a candidate, the Speaker of the House of Assembly simply notifies the House and declares that person duly elected. If they do not agree, one or more candidates may be nominated by the Prime Minister, the Leader of the Opposition, or any three members of the House, and the House decides by secret ballot but, again, all that is required in that case is a simple majority. In Barbados the Prime Minister and the Leader of the Opposition can jointly nominate a consensus candidate, who is then elected without a vote unless any member of Parliament lodges their objection. If an objection is lodged, the Senate and the House of Assembly meet separately and each votes on accepting or rejecting the nominee. In this case a two-thirds majority of valid votes in each House is then required. This is essentially the method of appointment proposed by the Opposition in Jamaica.
Regardless of the merits of the different methods of appointing the President, the lack of agreement between the Government and opposition party in Jamaica could have serious repercussions if an agreement has not been reached by the time of the referendum, as the question of the manner of appointment will, presumably, be included in the referendum. However, since neither party will want to be seen to be standing in the way of abolishing an institution as unpopular in Jamaica as the monarchy, it is likely that, with an election looming, a compromise on this issue will be reached.
Though it has only just begun, Jamaica’s experience in tackling the constitutional obstacles that must be overcome if it is to succeed in becoming a republic demonstrates that process matters in a variety of ways. First, the composition of the body responsible for overseeing the transition to a republic is critical: it needs to be perceived as representative of the entire community for its recommendations to attract the support necessary to win the popular vote in a referendum. Second, it may be politically prudent to separate the question of becoming a republic from other constitutional reforms, even if this comes at a financial cost. Third, and finally, the Government must make every effort to keep the Opposition on board even if this means reaching a compromise on technical matters such as the manner of appointment of the President, especially where the Opposition’s objections to the Government’s proposals are not unreasonable. While the Commission must carefully navigate its next steps to keep the process on track, the lessons already gleaned from Jamaica's experience can offer valuable insights for other countries undergoing similar constitutional reform processes.
Dr. Derek O’Brien is a Reader in Public Law, Oxford Brookes University
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Suggested citation: Derek O’Brien, ‘Jamaica’s Transition to a Republic: Process Matters’, ConstitutionNet, International IDEA, 28 April 2023, https://constitutionnet.org/news/jamaicas-transition-republic-process-matters