It was in June of last year that the Minister of Legal and Constitutional Affairs, Mrs Marlene Malahoo-Forte, told Parliament that the Government was embarking on “a thorough and comprehensive review of the 1962 Constitution”.

It could be that the view is that the review of the Constitution laboriously undertaken in the 1990s was not “thorough and comprehensive” enough. Thirty years is a long time. Circumstances may have changed and positions advanced and even agreed then may have shifted. But it is important to take stock, not only of what it was able to accomplish but the tedious efforts that were entailed.

It was in 1991 that a Constitutional Review Commission was established, chaired initially by the late Mr Justice James Kerr and subsequently by Dr the Honourable Lloyd Barnett. Two reports emanated from this commission in 1993 and 1994. The latter report was referred to a joint select committee of Parliament chaired by the late Honourable David Coore. I was privileged to have been a member of that committee.

The joint select committee deliberated over many months, holding several formal meetings and considerable discussions in the margins. It submitted its report in 1995, identifying the issues on which consensus had been reached and those on which differences between the Government and the Opposition remained unresolved. It is useful to recount both.

Issues on which agreement reached

• A new Charter of Fundamental Rights which would not only expand the basic rights and freedoms to which every citizen would be entitled but, most importantly, remove the power of the Government by simply passing a Bill in Parliament to restrict those rights and freedoms if, in its own exclusive opinion, it thought it was necessary “in the interests of defence, public safety, public order, public morality or public health”. The new Charter would make any such restriction justiciable, ie any such action could be challenged in Court and the burden would be on the Government to satisfy the Court that its action was “demonstrably justified in a free and democratic society”.

• Jamaica would transition to republican status replacing the Queen as Head of State with a President who, although essentially non-executive, would exercise certain quasi-executive powers as was then and continues to be the case with the governor general.

• Membership of the Senate would be expanded from 21 to 36 with the Prime Minister and the Leader of the Opposition nominating 20 and 14 members, respectively. Two other appointees would complete the membership of the Senate. This would preserve the delicate balance in which the number of government members would fall short of the two-thirds majority required to alter any significant provision in the Constitution.

• 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.

• There would be entrenched provisions in the Constitution for the impeachment of public officials.

• Only citizens of Jamaica would be eligible to sit in Parliament.

• The power of the Prime Minister to call general elections at any time would be subject to the existence of a voters list that had been updated within the previous six months.

• Provision would be made for a Citizens Protection Bureau headed by the Public Defender to assist ordinary citizens in the protection of their constitutional rights.

• Limits would be placed on the number of parliamentarians that can be appointed to ministerial positions.

• The Constitution would affirm 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 would be made to enable individuals and organisations to challenge, on public interest grounds, actions of the Government without having to obtain the consent of the Attorney General and to widen locus standi to facilitate class action suits.

• Express provision would be made for the decisions of the Director of Public Prosecutions to be subject to judicial review.

• Provisions relating to the Electoral Commission, Contractor General and Citizens Protection Bureau would be entrenched in the Constitution.

Areas of disagreement

The report of the joint select committee identified the issues on which disagreement existed between the Government and the Opposition:

• While it was agreed that the President, as Head of State, would be nominated by the Prime Minister after consultation with the Leader of the Opposition but would be subject to confirmation by a two-thirds majority of Parliament voting by secret ballot, there was disagreement as to how that two-thirds majority should be counted. The then PNP Government argued that the vote should be taken with both Houses voting together. The then JLP Opposition insisted that the vote should be taken separately in each House to ensure consensus on this crucial appointment, no matter how overwhelming the government majority in the lower House may be.

• With regard to the two additional seats in the Senate, the then PNP Government wanted them to be reserved for third parties that nominated candidates in at least half 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 nomination, one each, by the Prime Minister and the Leader of the Opposition. The then 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 own discretion, in order to introduce some non-partisan diversity to the Senate. This was in keeping with a recommendation of the Constitutional Review Commission.

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

Reviewing the review

One of the criticisms of the 1962 independence constitution process was the haste with which it was concluded — in merely a few months — and the lack of adequate consultations with the Jamaican people. In an effort to avoid a repetition, the Constitutional Review Commission of 1991 mounted a public education programme and held 14 parish meetings but the level of interest shown and the attendance at these meetings were modest at best. In response to public appeals, it received 129 written submissions. The joint select committee, for its part, received only 32 written submissions. It is of interest to note that the joint select committee chaired by the late Right Excellent Norman Manley which prepared the original Constitution in 1961-1962 received 78 written submissions. I am reluctant to even hazard a guess as to whether the response today would be any better or even as much.

The question now is how is this new effort going to proceed. Do we simply reaffirm the 1995 areas of agreement and proceed to implementation? Do we revisit the areas of disagreement to see whether agreement can now be reached for those to be included in the implementation? Or do we wipe the slate clean and start all over again, examining issues that may have been overlooked in 1995 but running the risk not only of unravelling those issues on which agreement was tediously hammered out but spending another decade or more in doing so? The Prime Minister, for example, had signified his intention to seek constitutional amendments to establish fixed election dates and term limits for the office of Prime Minister.

There is also the question as to whether the fiscal responsibility obligations which were 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. That germ has since developed to include an independent central bank and an independent fiscal commission, both of which I believe should also enjoy constitutional protection.

The referendum issue

Transforming Jamaica into a republic requires a referendum but there are other agreed issues that would also require approval by referendum such as the expansion of the Senate, restricting the eligibility of persons sitting in Parliament to Jamaican citizens only and making the Prime Minister’s authority to call elections at any time subject to the existence of an updated voters list.

At first glance, one would be inclined to identify all the referendum-requiring issues on which there is agreement and roll them into one grand referendum. Holding a referendum costs a lot of money — over $1 billion. The danger here is that an issue for which there is broad popular support may be trampled in the melee of controversy on other issues, not to mention the possibility that any referendum, depending on the political exigencies of the time, may become a casualty of partisan political strategy. Such was the experience of The Bahamas in 2016 when its voters rejected a package of proposed constitutional changes that included the prohibition of discrimination based on gender and allowed people born outside of the country to a Bahamian mother to enjoy the same right to citizenship as those born to a Bahamian father.

In that same year, as well, the voters of Grenada, in a referendum, 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, and established fixed election dates and term limits for the Prime Minister.

If the transition to republican status to consolidate our sovereignty, even as late as 60 years after Independence, is considered to be of significant importance to our sense of nationhood, we may be well advised to make that the single issue on a referendum ballot. The sticking point regarding how the Head of State would be confirmed by Parliament seems to have dissolved since the PNP has indicated its willingness for this to be done by a two-thirds majority in each House of Parliament. The other referendum-requiring issues, even if agreed between the Government and the Opposition, would have to await their turn at the ballot box.

Untightening the constitution belt

An issue that needs to be dealt with is the inflexibility of section 49 of the Constitution. This is the section that specifies how the Constitution can be amended, and that section can only be altered by way of a referendum. Amending the Constitution must certainly be guard-railed but the current provisions are too inflexible and, I believe, unintentionally so.

Section 49 provides for three separate levels of approval for changes to the Constitution: simple parliamentary majority, two-thirds majority in each House of Parliament, and approval by way of a referendum. The unintended difficulty that we have come up against is that a two-thirds majority is not sufficient to change even those sections specified in subsection (2) that require only a two-thirds majority for amendment.

So, for example, while there is agreement that the Electoral Commission should be entrenched by including it in subsection (2), to do so would require an amendment to section 49, which cannot be done without a referendum. That leaves this well tried and proven institutional arrangement that is so important for our democracy dangerously unprotected. A government could theoretically go to Parliament tomorrow and abolish the Electoral Commission altogether.

I was able to secure an amendment to the Constitution to enact the Charter of Fundamental Rights in 2010 because that required only a two-thirds majority in each House of Parliament which the then Opposition was prepared to facilitate.

I suggest that we need to consider amending section 49 (and this would require a referendum) to remove subsection (2) which specifies the provisions that require only a two-thirds majority and establishing it as a separate section. It would enable us to entrench provisions like those relating to the Electoral Commission, the Integrity Commission, the impeachment of public officials and any provision that may subsequently be considered to require such protection by a two-thirds majority in each House of Parliament rather than requiring a referendum as is now the case.

That two-thirds majority requirement is still a sturdy guardrail as we have seen with the issue of doing away with appeals to the UK Privy Council — a change that requires no referendum, only a two-thirds majority in each House of Parliament, but which, despite more than 20 years of intense debate, has not been able to surmount that hurdle.

— Bruce Golding served as Jamaica’s eighth prime minister from September 11, 2007 to October 23, 2011.