Clarity, Consensus, and Confidence in the Process: The Recipe for Republican Reform in Jamaica?
As Jamaica proceeds with ‘Phase 1’ of its constitutional reform to become a republic, several challenges must be overcome. Achieving clarity on the scope of Phase 1, rebuilding trust in the Constitutional Reform Committee, resolving differences over the final appeals court, determining the nature of the presidency, and effectively communicating the proposed reforms to the public are all critical steps in securing a favourable referendum result – writes Derek O’Brien
Jamaica is currently in the midst of its third attempt to reform its Constitution since gaining independence in 1962. Previous efforts at constitutional reform in the 1970s and 1990s have cast a long shadow over the current process. Members of the current Constitutional Reform Committee (CRC) are keen to avoid the fate of previous CRCs, whose carefully deliberated recommendations for constitutional reform were never implemented. Beyond Jamaica, states such as St Vincent and the Grenadines, The Bahamas, Grenada, and Antigua and Barbuda have failed to achieve the necessary majorities in referendums to implement recommended reforms to their respective constitutions. The Government of Jamaica is hoping to buck this trend by emulating the example of Barbados, which in 2021 successfully amended its Constitution to transition to a republic, albeit without the need for a referendum. The Jamaican Government has, accordingly, announced its plan to reform the Constitution in two stages, with Phase 1 focusing on Jamaica becoming a republic.
As of November 2023, the CRC has met 22 times since its inaugural meeting on 22 March 2023. It has, most recently, prepared an Interim Report for Cabinet, outlining its progress in advancing Phase 1 and engaging members of the public in discussions about the proposed reforms to the Constitution. This has included the creation of a sub-committee of the CRC – the Public Engagement Committee (PEC) – which is charged with assisting the CRC in the creation of the conditions necessary for an informed vote in the referendum (2nd Meeting Minutes of the CRC, s. 5.0). So far this has resulted in five Town Hall meetings, ‘stakeholder sensitization sessions’ in four parishes, 50 consultative activities with a variety of stakeholders, eight presentations by stakeholders to the CRC, and the establishment of online platforms via WhatsApp and social media pages, along with an email address for the CRC (20th Meeting Minutes of the CRC, s. 8.21.4).
If the incumbent Jamaica Labour Party fails to win the 2025 general elections, there is no guarantee that the opposition People’s National Party will implement the Constitutional Reform Committee's recommendations . . .
It is already clear, however, both from the CRC’s meeting minutes and from reports in the local press, several obstacles must be overcome for the Jamaican Government to successfully complete Phase 1 of its constitutional reform programme prior to the 2025 general elections. This is a crucial deadline because, if the incumbent Jamaica Labour Party (JLP) fails to win that election, there is no guarantee that the opposition People’s National Party (PNP) will implement the CRC’s recommendations. Notwithstanding a call by one of the non-politically affiliated members of the CRC for both political parties to commit to advancing the constitutional reform programme beyond the life of the current Parliament (12th Meeting Minutes of the CRC, s. 7.3.24), the PNP has yet to publicly give that commitment. This piece therefore identifies four key obstacles to the successful completion of the constitutional reform endeavour.
1. Lack of clarity about the matters covered in Phase 1
Initially, Phase 1 was expected to focus on those changes that are required by the Constitution to be approved in a referendum. Broadly, these were identified as abolition of the constitutional monarchy, the establishment of the Republic of Jamaica, and ‘related matters’ (Inaugural Meeting Minutes of the CRC, s. 5.2.1.). It is difficult to know what precisely falls under the umbrella of ‘related matters’, but the CRC’s discussions have since strayed far beyond the abolition of the monarchy and the creation of a republic to include qualifications for the House of Representatives and Senate, as well as extending the lifetime of a Parliament for a period not exceeding two years in cases of public emergency (4th Meeting Minutes of the CRC, s 8.2.22). These topics do not appear to be directly related to the abolition of the monarchy or the creation of a republic.
Of greater concern, however, is the level of confusion amongst the public regarding Phase 1’s scope. Reports from the CRC’s various encounters with members of the public in Town Hall meetings and stakeholder presentations to the CRC indicate a public desire to discuss a much more root and branch reform of the Constitution that extends far beyond the Government’s Phase 1 plan (11th Meeting Minutes of the CRC, s. 7.3; 19th Meeting Minutes of the CRC, ss. 8.4-8.5; 21st Meeting Minutes of the CRC, ss. 8.3-8.4). This is worrying because if and when a referendum is eventually held, members of the public may be disappointed if constitutional reform is limited to the abolition of the monarchy and creation of a republic. This disappointment may, in turn, lead to rejection of the reforms to the Constitution contemplated within Phase 1.
2. Distrust of the CRC
As the CRC has noted, it has been operating ‘amidst a certain level of cynicism, ignorance and general lack of trust in the process’ (7th Meeting Minutes of the CRC, s. 4.3). Some of this cynicism and mistrust is a legacy of the drafting and negotiation of the original Independence Constitution, from which many citizens felt they had been excluded (7th Meeting Minutes of the CRC, s. 4.9).
As the CRC has noted, it has been operating ‘amidst a certain level of cynicism, ignorance and general lack of trust in the process’ . . .
This lack of trust has not been helped, it has been claimed by Marlene Forte, Chair of the CRC and Minister for Legal and Constitutional Affairs, by the release of a ‘spliced video’ under the opposition PNP’s logo, suggesting that the first Town Hall Meeting had not gone well, and that the CRC’s Chair was unable to answer questions put to her at the meeting. During discussions in the same Town Hall meeting, members of the CRC were described by attendees as ‘the silent 15 or the secret 15’, because their meetings were not live streamed and, initially at least, Committee meeting minutes had not been made publicly available. In the CRC’s view, much of this criticism and distrust arose because it was operating in a historical context in which the government was viewed as ‘a group of political elite looking out for their own interests’ (8th Meeting Minutes of the CRC, ss. 4.1, 7.1.2). The CRC has responded to these concerns by successfully requesting an increase in its budget, redoubling efforts to canvass the public’s views – including by commencing a national public education campaign overseen by the Public Education Committee – and bolstering the CRC’s social media presence.
It remains to be seen, however, whether these measures will allay the public’s concern about the work of the CRC or how they will impact support for its reform recommendations when it comes to a referendum. Much will surely depend upon whether the CRC can avoid the kind of partisanship that has sunk efforts at constitutional reform elsewhere in the region, despite the troubled start to the CRC’s efforts to engage the public.
3. Disagreement on replacing the Judicial Committee of the Privy Council
Despite its declared aim to ‘Jamaicanise’ the Constitution by establishing a Republic of Jamaica and replacing the independence Constitution with one enacted by the Jamaican Parliament and approved by the people in a referendum (2nd Meeting Minutes of the CRC, s. 6.11), the CRC has steadfastly refused to include the abolition of the Judicial Committee of the Privy Council (JCPC) and its replacement by the Caribbean Court of Justice (CCJ) in Phase 1. This decision might seem peculiar at first glance. Whilst abolishing the King as the Head of State will clearly have tremendous symbolic significance, replacing the JCPC with the CCJ would have far greater practical significance, ensuring that ultimate legal sovereignty is vested in a regional court composed of predominantly Caribbean judges, rather than a court closely associated with the empire, composed almost exclusively of British judges, and located 4000 miles away.
The CRC, however, offers two reasons for this exclusion from Phase 1. Firstly, there is a division of opinion among members of the public about whether to abolish appeals to the JCPC (7th Meeting Minutes of the CRC, s 7.5.13) and within the Government itself there is no unified view on the issue (8th Meeting Minutes of the CRC, s. 7.2.15). Secondly, abolishing JCPC appeals does not require a referendum and so can be addressed in Phase 2 of the reform programme. The latter, however, represents something of a volte-face by the governing JLP. Previously, after the JCPC had ruled in Independent Jamaica Council of Human Rights (1998) Ltd v AG Jamaica that in order to abolish the right of appeal to the JCPC the procedure for amending the entrenched provisions of the Constitution would have to be followed, the JLP was adamant that it would not support any Bill to replace the JCPC with the CCJ without the approval of a majority of Jamaican citizens in a referendum.
For its part, the opposition PNP is insisting that the issue of abolishing the right of appeal to the JCPC should be included in Phase 1. In the PNP’s view, abolishing the right of appeal to the JCPC is simply consistent with abolishing the monarchy (19th Meeting Minutes of the CRC, s. 8.9). This is exactly what Guyana did when it became a republic in 1970, as did all of Britain’s former colonies in Africa: Ghana (1960), Tanzania (then Tanginikya) (1961), Nigeria (1963), Kenya (1964), Malawi (1966) and the Gambia (1970).
The opposition People’s National Party said that it will withhold its support for Jamaica’s transition to a republic without the ‘simultaneous removal of the UK Privy Council as Jamaica’s final court.’
The question of replacing the JCPC with the CCJ has also been raised repeatedly in public meetings (11th Meeting Minutes of the CRC, s. 11.14), indicating at least some public support for the PNP’s position. Though the Interim Report to Cabinet does include a reference to the PNP’s stance on abolishing the right of appeal to the JCPC (20th Meeting Minutes of the CRC, s. 8.12.11), the Government appears determined to defer this issue to Phase 2 of the reform programme. Clearly, the Government has decided that only issues upon which there is a consensus will be included in the Bill that will be put to the voters in a referendum (5th Meeting Minutes of the CRC, s. 5.6). This strategy is not, however, without its risks as the PNP has said that it will withhold its support for Jamaica’s transition to a republic without the ‘simultaneous removal of the UK Privy Council as Jamaica’s final court.’ This could potentially torpedo the transition to a republic which requires the support of at least one PNP senator to meet the special legislative majority required by the Constitution before a referendum can be held.
4. What type of Presidency?
Whilst there is an overwhelming consensus in favour of replacing the monarch with a President as the Head of State, questions remain about the method of appointing the President and the powers of the President. Initially in April 2023, the CRC agreed that the President would be nominated by the Prime Minister after consultation with the Leader of the Opposition. Confirmation would require a two-thirds majority of the House of Representatives and the Senate, with both Houses sitting together to emphasise unity between the political parties. If a two-thirds majority could not be reached, provision would be made for an absolute majority vote. It was further agreed that a sub-committee, composed of members of the CRC, would be appointed to discuss the powers of the President (3rd Meeting Minutes of the CRC, ss. 6.4-6.8). By July, however, it was evident from the CRC’s meetings with the public that the latter believe the President should be elected by the people and should not be purely ceremonial (15th Meeting Minutes of the CRC, ss. 5.4 and 5.6). This is, however, very difficult to reconcile with the Government’s policy to transition from a constitutional monarchy within the context of a Parliamentary Cabinet system (21st Meeting Minutes of the CRC, s. 9.1).
Adopting a non-executive President would entail the least radical change to the existing position of the Head of State but may not be enough to satisfy members of the public who seem to conflate an elected President with an executive President.
For the time being, at least, it appears that the CRC is leaning toward the model of a non-executive President, appointed in the manner outlined above, with specific powers not involving the daily administration of government (21st Meeting Minutes of the CRC, s. 9.1.13). Adopting such a model would entail the least radical change to the existing position of the Head of State but may not be enough to satisfy members of the public who seem to conflate an elected President with an executive President (22nd Meeting Minutes of the CRC, s. 7.8). The CRC clearly, therefore, still has significant work to do in its public education campaign to persuade the public to accept a constitutional reform that would continue to deny them a direct voice in the choice of their Head of State and to support an essentially ceremonial Head of State with very limited executive powers.
In contrast to Barbados, which was able to transition from a constitutional monarchy to a republic by a two-thirds majority vote in parliament, the task confronting the Government of Jamaica is much harder. It is hoped that issues such as lack of clarity about what is and is not included in Phase 1, and distrust of the CRC, can both be addressed by the CRC’s Public education campaign and by the efforts of its Public Engagement Committee. However, disagreements about including the abolition of JCPC appeals in Phase 1, and whether the President should be directly elected, represent serious obstacles which need to be resolved if the Government is to secure a victory in the referendum that it needs to hold before Jamaica can emulate the example of Barbados and transition to a republic.
Dr. Derek O’Brien is a Reader in Public Law, Oxford Brookes University, and co-editor of the Oxford Handbook of Caribbean Constitutions.
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Suggested citation: Derek O’Brien, ‘Clarity, Consensus, and Confidence in the Process: The Recipe for Republican Reform in Jamaica?’, ConstitutionNet, International IDEA, 17 November 2023, https://constitutionnet.org/news/voices/recipe-republican-reform-jamaica