Constitutional Reform Report Sets Out the Way Forward for Jamaica – or Does It?

Jamaica’s Constitutional Reform Committee has delivered its recommendations for reforming the Jamaican Constitution. These include removing the Monarch as Jamaica’s Head of State and reforming citizenship requirements for parliamentarians. A heated national debate over dual citizenship has now prompted the Leader of the Opposition and other parliamentarians to declare that they will renounce their British citizenship, albeit currently constitutionally permissible. However, a larger issue looms: the fundamental dispute between the Government and Opposition on Jamaica’s apex court. This disagreement has the potential to derail the entire project due to the practical requirement for consensus on some aspects of reform – writes Dionne Jackson Miller

The report of Jamaica’s 2024 Constitutional Reform Committee is now awaiting debate in Parliament, and has already sparked significant discussion. The 52-page report addresses the ‘Jamaicanisation’ of the Constitution, transforming Jamaica from a constitutional monarchy into a republic, retaining the parliamentary system, reforming Parliament, updating parliamentary nomenclature, changing citizenship provisions, and incorporating the Electoral Commission and the Office of the Public Defender. Additionally, it addresses the process for amending the Constitution.

This analysis will focus on the most topical and arguably urgent issues: the establishment of a republic, the reform of Parliament (and specifically the citizenship requirements for parliamentarians), and the lack of recommendations on reforming Jamaica’s apex court. Over 60 years after achieving political independence from Britain, the Government and Parliamentary Opposition agree it is time to amend the Constitution to provide for an indigenous Head of State. Over half of the respondents to a 2022 poll agreed. The issue received renewed attention with the death of Queen Elizabeth II and the ascension of King Charles III being viewed as the end of an era in Jamaica’s political history and the opportunity for a break with the past.

Dual citizenship: a disqualification for parliament? 

The citizenship issue in particular has recently ignited national discussion, leading to Leader of the Opposition, Mark Golding, announcing on 30 June 2024 that he would renounce his British citizenship in response to public concerns about a potential Prime Minister having divided loyalties. But issues related to citizenship of parliamentarians have also caused controversies in the past. Section 39 of the Jamaican Constitution specifies that a parliamentary candidate must be ‘a Commonwealth citizen of the age of twenty-one years or upwards; and (b) has been ordinarily resident in Jamaica for the immediately preceding twelve months.’ Section 40(2)(a) disqualifies any person who ‘is, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign Power or State’, and Section 41 declares a seat vacant under similar circumstances. These sections were central to the 2009 Court of Appeal judgment in the case of Abraham Dabdoub v. Daryl Vaz and others, in which the Court ruled MP Daryl Vaz ineligible to sit in Parliament due to his ‘positive acts of applying for, renewing and travelling on his United States passport . . .’

The Constitutional Reform Commission evaluated the citizenship qualifications for serving in Parliament, whether Jamaicans with foreign citizenship should be barred from Parliament, and whether to discontinue eligibility for non-Jamaican Commonwealth citizens. The anachronistic inclusion of all Commonwealth citizens as eligible for election in Jamaica was understandable in 1962 Jamaica, emerging from a colonial relationship with Britain, but it is not seen as justifiable in contemporary Jamaica and was described as ‘obsolete’ by one of the Opposition members who served on the Committee.

The Committee recommended that ‘current references to Commonwealth citizens should be removed’ from the Constitution . . . 

The Committee recommended that ‘current references to Commonwealth citizens should be removed’ from the Constitution and that ‘Jamaican citizenship should be the essential qualifying citizenship criterion for membership in the Parliament’ (6.1.8 and 6.1.9). Nevertheless, Opposition-nominated Committee member G. Anthony Hylton reported that there was no consensus on ‘the criteria for qualification to serve in Parliament.’ The debate therefore continues on whether dual citizens can serve in Parliament, or whether membership should be restricted to persons who hold Jamaican citizenship only.

Although contemplated and allowed by Section 39, this issue has, as mentioned above, become intensely topical given the revelation that Leader of the Opposition Mark Golding is a British citizen by descent. The revelation precipitated a heated public conversation over whether Golding should nonetheless renounce that citizenship as an aspiring Prime Minister, and what requirements for eligibility for Parliament should be contained in a reformed Constitution. The concerns earlier led to Government Senator Matthew Samuda announcing he would renounce his British citizenship. Under intense pressure, especially after a poll indicated that a majority of Jamaicans wanted the Opposition Leader to renounce, he has now followed suit, along with Opposition MP and Shadow Finance Minister Julian Robinson.

Roles in a republic

During a 2022 Royal Visit to Jamaica, Prime Minister Andrew Holness’s remark to the Duke and Duchess of Cambridge, that ‘We’re moving on’, signalled a political readiness to remove the Monarch as Jamaica’s Head of State. It is therefore unsurprising that the work of the Constitutional Reform Committee, established to facilitate the country’s transition to a republic, faced heightened scrutiny regarding this issue.

Unfortunately, the Committee, which was named on 22 March 2023, was mired in controversy from the outset. There was consternation over its fairly narrow membership and  the way its proceedings were conducted, in what was seen as a closed process with limited public involvement. The Committee refused requests to livestream meetings, and minutes were published late, sometimes weeks after important discussions and decisions had taken place. This has been inherently problematic as Jamaica’s 1962 Independence Constitution was developed with what Derek O’Brien has called a ‘lack of autochthony . . .  produced in great haste by a Joint Committee of Parliament with very little input from members of the public.’ 

At a press conference on 14 April 2023, less than a month after the Committee was named, Co-chair Marlene Malahoo Forte, who is also Jamaica’s Legal and Constitutional Affairs Minister, announced the Committee’s consensus to remove the Monarch as Head of State, to be replaced by a President, with the Prime Minister continuing as Head of Government. The announcement sparked further concern about the lack of public input on such a fundamental change. In response, the Committee began a series of public consultations that included five town halls and ‘over 50 consultative activities with a variety of stakeholders,’ as per the minutes of the Committee on 8 September 2023.

The Committee’s report recommends a new system of government for Jamaica, proposing the removal of the Monarch as Jamaica’s Head of State and from the legislative and executive authority of the State. It suggests establishing a ceremonial President as Head of State ‘in whom is also vested certain executive powers which do not involve the administration of government’ (4.2.4). This President would serve a seven-year term, renewable once for five years, assuming the powers currently vested in the Governor-General.

The Committee considered but ultimately rejected calls for the direct election of the President, citing concerns about stability.

The Committee considered but ultimately rejected calls for the direct election of the President, citing concerns about stability. However, it is unfortunate that the Committee did not propose for discussion any models that would address these concerns, while allowing the people a direct say in selecting a new Head of State. The recommended appointment process involves nomination by the Prime Minister after consultation with the Leader of the Opposition, with confirmation by Parliament in a special joint sitting of both houses voting separately with a two-thirds majority in each House of Parliament needed for confirmation of the nominee. If consensus on the candidate between the Prime Minister and Leader of the Opposition is lacking, it is recommended that each would nominate a candidate requiring an absolute majority of each House for appointment. This process is similar in principle to that adopted in Barbados.

Decolonizing the judiciary?

While the Committee recommended the removal of the Monarch from two of the three arms of government – the executive and the legislature – the omission of the judicial arm is noticeable. Under the Constitution, Jamaica’s apex court is the United Kingdom’s Judicial Committee of the Privy Council. Previous administrations under the now-Opposition People’s National Party made two failed attempts to remove the Privy Council as Jamaica’s court of final appeal and replace it with the Caribbean Court of Justice. The first attempt in 2004 was ironically thwarted by the Privy Council itself. The case was related to the procedural requirements for amending Section 110 of the Constitution, which provides for a right of appeal to the Privy Council. Under Section 49 of the Constitution, this involves the affirmative vote of a majority of all the members of each House of Parliament. However, the Privy Council held this provided inadequate protection for the country’s apex court, as the replacement Caribbean Court of Justice would be sitting atop a system of courts more strongly protected by entrenched provisions with higher procedural safeguards. The Constitutional Reform Committee declined to consider the issue of Jamaica’s final court, noting the Government’s position that it would be dealt with at a later stage. However, unresolved political disputes over this issue could derail the current efforts at reform entirely.

The Opposition has declared that they will not support the move to remove the Monarch as Head of State unless simultaneous action is taken to remove the Privy Council as Jamaica’s final court.

Opposition Leader Mark Golding instructed his representatives on the Constitutional Reform Committee not to sign the report, as the Opposition has declared that they will not support the move to remove the Monarch as Head of State unless simultaneous action is taken to remove the Privy Council as Jamaica’s final court. This highlights one of the real obstacles in Jamaica’s efforts at constitutional reform. There are three types of provisions in the Jamaican Constitution – non-entrenched, entrenched and deeply entrenched – as lucidly explained by the Privy Council in Independent Jamaica Council for Human Rights and others v. the Hon. Syringa Marshall-Burnett and the Attorney General of Jamaica. Provisions which are entrenched and deeply entrenched require Opposition support for amendment.

Removing the Monarch as Jamaica’s Head of State involves changes to deeply entrenched constitutional provisions and therefore requires a two-thirds majority of each House of Parliament, plus a majority vote in a popular referendum. Although the Government has the required two-thirds majority in the Lower House with 49 MPs, at least one Opposition senator must also vote with the Government to attain a two-thirds majority in the Senate. The requirements are meant to ensure that important amendments to the Constitution have bi-partisan support, and to prevent constitutional see-sawing if changes are made without broad support. While this is an important safeguard, the requirements for consensus mean that necessary efforts at reform can be stymied when political parties cannot agree. Section 49(5)(b) of the Constitution provides in the event of the Senate not reaching the two-thirds majority after two attempts, the matter may be put to the people in a referendum requiring a special majority of three-fifths in support. While theoretically possible, it is extremely unlikely that any referendum opposed by the parliamentary Opposition would yield the required majority. Without a political resolution of the fundamental dispute between the Government and Opposition around the issue of Jamaica’s apex court, this and other important constitutional provisions in need of reform may remain unaddressed if this latest constitutional reform project stalls at this still-early stage.

Dionne Jackson Miller is an attorney, journalist and PhD student in Constitutional Law at the University of the West Indies, Mona Campus.

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Suggested citation: Dionne Jackson Miller, ‘Constitutional Reform Report Sets Out the Way Forward for Jamaica – or Does It?’, ConstitutionNet, International IDEA, 11 July 2024, https://constitutionnet.org/news/voices/constitutional-reform-report-sets-out-way-forward-jamaica

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