It is gratifying to see that the report from the Constitutional Reform Committee (CRC) has generated considerable interest. Many of the comments have not taken into account critically important factors that guided the approach of the CRC. I will, therefore, make an effort to clarify these factors.

Firstly, the terms of reference identified two matters as demanding priority. These are the ‘Jamaicanisation’ of the constitution and the replacement of the monarchical form with a republican form. The CRC took into account that both these reforms could only be implemented if approved by the electorate. The CRC recognised that both the Jamaica Labour Party (JLP) parliamentary majority and the People’s National Party (PNP) parliamentary minority were in support of these two items of reform. The committee also found that there was overwhelming public support for these two changes.

Secondly, the CRC’s terms of reference required it to:

1) Assess how the passage of time has impacted the recommendations of the JSCCER (Joint Select Committee of the Senate and the House of Representatives on Constitutional and Electoral Reform) contained in its Final Report (1995) which were submitted to and approved by the Parliament

2) Advise what fresh perspectives ought to be considered in light of any new national, regional, or international development between then and now

3) Recommend any necessary modification to update the recommendation for implementation

Thirdly, the CRC was mindful of the fact that the experiences of many countries are that when changes for which there is clear agreement are combined with changes in respect of which there is disagreement or even doubts, referenda on constitutional reforms are likely to fail.

Accordingly, the CRC’s strategy was to give primacy to the two imperatives of abolition of the monarchy and ‘Jamaicanisation’ of the constitution as well as the many consequential provisions which these two changes entail. Accordingly, the CRC recommended the replacement of the present constitution, which is a schedule to a British Order in Council by a Jamaican instrument with new features, such as a patriotic preamble, the identification of national symbols, and its formulation where practicable in a more reader-friendly style.

The CRC devoted considerable attention to the establishment of a new head of State in the proposed republican constitution. In respect of the proposed new office of president, the CRC has made detailed recommendations, including the qualifications for appointment, the method of appointment, the term of office, the termination of the appointment, and the making of temporary appointments, when necessary.

The committee also dealt with other matters in respect of which it appeared that consensus existed or was likely to be obtained. One of these was citizenship. In the present constitution, Commonwealth citizenship is given a special status, including being the specified qualification for parliamentary membership. Recognising that the Commonwealth has changed considerably since Independence and that it is no longer appropriate to treat Commonwealth citizens as automatically having the same rights as Jamaican citizens, including eligibility for membership in Parliament, the CRC decided to recommend that references in the constitution to Commonwealth citizens should be replaced by references to Jamaican citizens. It would then be left to Parliament to confer specific privileges on Commonwealth citizens, such as Caricom citizens, when the circumstances justify it.

In respect of dual citizenship and the question of disqualification for parliamentary office, the CRC took into account that many Jamaican citizens have dual citizenship by virtue of rules relating to descent and marriage as well as the migratory history of Jamaicans. Accordingly, the committee decided in favour of using the judicially recognised criterion of “conflicting allegiance” as the test of disqualification for parliamentary membership rather than dual or multiple citizenships.

The CRC also dealt with the question of entrenching particularly important institutions in the constitution. In the case of the Electoral Commission of Jamaica (ECJ) and the Office of the Public Defender, Parliament had already enacted legislation, with bipartisan support, which contained declarations in favour of the entrenchment of these offices in the constitution. It appeared that the consensus still exists. The CRC also took into account that this undertaking given to the people of Jamaica should be implemented. Accordingly, the CRC recommended that the ECJ and the Office of Public Defender be entrenched in the new constitution.

In the case of the Integrity Commission, for which there are reasonable arguments in favour of its incorporation in the constitution, particularly because of public concern about corruption, it did not appear to the CRC that there was a consensus for its inclusion and so the committee did not include this in its recommendations at this phase.

The CRC considered the frequently repeated suggestion for the Senate to be expanded to include some measure of representation from non-partisan civil society and, therefore, recommended a recomposition of the Senate with these important conditions:

A) Additional members should be appointed by an essentially non-partisan method

B) Government should retain its power to pass ordinary legislation by having a simple majority of senators

C) Government should not be able to obtain the two-thirds majority needed for changes to the entrenched provisions of the constitution without obtaining the support of at least one senator who was appointed on the advice of the leader of the Opposition

D) Independent senators should not have a right to vote on measures for the amendment of entrenched provisions of the constitution

In respect of the duration of Parliament, the committee recommended that provision should be made for the extension of the life of Parliament in cases of national calamities, first on the advice of the prime minister for a limited period and for any further extensions by the approval of a special majority of Parliament.

With respect to the determination of whether the UK Privy Council should remain Jamaica’s final appellate court or be replaced by the Caribbean Court of Justice, the CRC found that no consensus existed. However, because of the importance of this issue, the committee suggested for consideration the placing of this issue as a separate question on the referendum ballot.

The CRC received many other proposals for the introduction of new provisions, such as impeachment, term limits, and recall of parliamentarians. The committee carefully considered these proposals and took into account expert opinions and documented records of their performances. However, some of these proposals had a poor record in the constitutional experiences of several countries or posed serious risks to political stability. In any event, the CRC did not find a consensus in favour of the adoption of these systems and could not, therefore, recommend that they be included at this stage in the new constitutional instrument.

Dr Lloyd Barnett is a member of the Constitutional Reform Committee, an attorney-at-law, and a former president of the Jamaican Bar Association.