Source : Jamaica Gleaner - July 22, 2007
The Constitution of Jamaica is once again under discussion, this time thanks to Bruce Golding who raised what has proven to be a controversial issue: a fixed election date. Strangely, throughout all the wide-ranging discussions on constitutional reforms during the first half of the 1990s, a fixed date of elections was never considered to have sufficient support to be included among the discussions.
There are good reasons for and against the fixing of the date. I will cite only one reason against the fixed date, which I can substantiate by having played a front-line position personally in each of the two instances.
If the election date is fixed, a government could not be changed before the due date of election if it found itself in an unbearable position, or if the electorate considered it to be acting in an unbearable manner. It would have to wait out the full term, with dire consequences of a breakdown of civil order, or perhaps worse. This was the position of Norman Manley in 1961 and Michael Manley in 1980.
In 1961, Norman Manley had lost the Federal referendum. Having also lost the Federal election previously in 1958 when Bustamante’s team secured a decisive majority, the PNP would have had no moral authority to continue as a government to introduce Independence without a general election to decide which party should govern independent Jamaica. There would have been a serious breakdown in public order if a decision was not made at an early date. Jamaica would have become a bitterly divided country,which would be absolutely the wrong way to introduce Independence. Norman Manley understood this. He knew that an early general election would be necessary to enable the country to move forward without recrimination, retaliation or reprisal.
But the problem in 1961 was that the PNP term of government, which it won in July 1959, still had nearly three more years before election would be due. It was because the Constitution allowed flexibility in fixing the date of election that Norman Manley was able to call a general election in 1962, rather than be forced to wait until 1964, sparing the country the horrors of a bitterly divided nation as the birthright of Independence.
In 1980, Michael Manley found the country in a worse situation. His far-left rhetoric in promoting his radical brand of socialism, despite labelling it democratic socialism, a softer version, and the pounding which he was receiving on the domestic economy, led to the ultimate crisis in 1980. He had combed the socialist world for help and got US$50 million, sufficient for a short period only. The capitalist world closed the doors on official aid and bank financing without an IMF agreement. He rejected the IMF and its programme which was impossibly difficult to live with. He had no choice then, but in February, to set a date for early election by October 1980, more than one year before the election was due. The delay to October was to allow the newly established Electoral Advisory Committee to make the country ready for election.
With a fixed election date, Michael Manley would have had to wait an additional, unbearable 22 months with a severe shortfall of foreign exchange plunging the country into shortages, stoppages and outages on a continuous basis well beyond the endurance of an inconsolable public. He did the only thing he could do: call an early election.
But while much time and media attention are being given to the issue of a fixed election date, understandably because this election lacks issues, the bigger picture of constitutional reforms is being overlooked.
The programme of these reforms began in 1993. I took the most unusual step of seating myself on the Constitutional Reform Committee to help drive the programme of reform as I considered this to be one of the two missions I set for myself in the 1990s.
The Reports on Constitutional Reform proposed 29 amendments, or new provisions, to be included in the Constitution. The second and last report was tabled in 1995.
A substantial amount of time passed while the direction of the reform process was focused on two of the very important issues: the replacement of the Privy Council by the Caribbean Court of Justice (CCJ) as the final Court of Appeal for Jamaica, and the drafting of a charter of fundamental rights and freedoms.
Charter of rights issues
We know the outcome of the attempt to displace the Privy Council. As the leader of the Opposition at that time, I spearheaded the decision to seek a declaration by the Privy Council on the attempt by the Government of Jamaica to enact the Caribbean Court of Justice (CCJ) as Jamaica’s final Court of Appeal. The Privy Council found that the CCJ was wrongly formulated and structured and, as such, could not assume that ultimate role in our judicial system unless it was restructured and obtained the consent of the people by referendum.
The other issue was the Charter of Rights. After years of wrangling in parliamentary committees, the charter has still not been perfected and is now before the House of Representatives for final decision.
In an effort to move the reform agenda forward, David Coore and I, as the only two surviving members of the parliamentary committee which framed the Constitution of Jamaica, were asked to review the 29 proposed amendments to the Constitution to determine which were ready to go forward to be enacted into legislation. We met at Vale Royal and determined that 16 of the 29 issues could be prepared for legislation.
However, there was still no forward movement on these 16 proposals. As a consequence, another meeting was convened on January 23, 2006, comprising David Coore, representing the government; Dr. Lloyd Barnett, eminent constitutional attorney; Shirley Miller, adviser/consultant at the Ministry of Justice and myself representing the Opposition, at the request of the Leader of the Opposition, Bruce Golding.
The meeting was to take decisions on the outstanding issues and make recommendation to the parliamentary committee in order to move some of these items to legislation. This was done, but since then, 18 months ago, still no movement has occurred.
The lack of movement has created a logjam of constitutional amendments, which is a nightmare, not only because of the number of proposals to be legislated, but because several of them require entrenchment or deep entrenchment in the Constitution, procedures which are lengthy, cumbersome and problematic.
The entrenchment procedure requires a two-thirds majority approval in each House of Parliament.
Where deep entrenchment is required, the procedure is a two-thirds majority in each House and a referendum. If the required two-thirds majority is secured in both Houses, that is, both parties agree on the proposal, the referendum must be passed by at least 51 per cent of the vote. If the two-thirds majority is not secured, that is, the parties disagree, then the referendum must be passed by at least 66 per cent of the vote, a level of support not yet achieved by any party. Additionally, entrenchment and deep entrenchment require a minimum of six months to pass through Parliament. If a referendum is involved, the timetable could be as much as a further six months longer. The full timetable could be, therefore, at least a year, or more.
This is where the problem is spelled out. There are at least nine proposals requiring deep entrenchment and several for entrenchment. Some may be grouped, but the important and weighty amendments cannot be coupled in one referendum. Each will need an individual referendum to avoid confusing the electorate. Hence, years of legislative action will be required to hold several referenda, a prospect likely to create certain voter fatigue, to say nothing of massive expenditure.
I have selected only a few of the many weighty issues already agreed but waiting to be enacted. Additionally, there are those to be agreed in Parliament because the Joint Committee of the Houses of Parliament could not secure agreement. These include the death penalty and trial by jury.
Still worse, there is no decision on the structure of government to decide whether there is to be a presidential system to replace the present model of leadership by a prime minister, and if so, whether the president is to have executive or ceremonial powers.
Now tell me when all this will be completed? After more than a dozen years of discussion and decision, when will the nightmare end? This is where the focus of attention should be, not in adding new proposals to the problem.
■ Edward Seaga is a former Prime Minister. He is now a Distinguished Fellow at the University of the West Indies.