SUPREME Court judge, Justice David Batts says with Jamaica on the verge of constitutional reform there is a raft of legitimate questions citizens should be asking, including whether the constitution, as it presently stands, “has done enough to prevent governmental graft and corruption”.

Delivering the keynote address during the Industrial Disputes Tribunal’s 50th Anniversary Luncheon and Awards Ceremony, titled Promoting Justice, Fairness and Workplace Harmony, at the Courtleigh Hotel and Suites in St Andrew, Justice Batts said while the Westminster system of governance around which the constitution was framed has “positive features”, the impact of the prevailing conditions and thinking at the time it was spawned cannot be ignored.

“The keys to a white minority keeping the vast majority in subjugation were violence and ignorance — violence to intimidate and ignorance to make it easier to intimidate and indoctrinate. Yet, paradoxically, in 1962 we were fully sold on the Westminster system of government. Those who were to take control drafted a constitution which, as far as possible, copied that system. It is a fact that neither at the time of Independence nor subsequently, was any great effort made to educate ordinary Jamaicans about their rights and obligations, or even the content of the constitution,” Justice Batts said.

While noting that among the “positive features” of the Westminster system are the separation of powers, which is intended to prevent the concentration of power and the development of autocracy; the creation of an independent judiciary; and the provision of inalienable rights, Justice Batts said, “the question for us in 2025 is whether the constitution has done enough to prevent governmental graft and corruption or perhaps, more importantly, the appearance of governmental graft and corruption”.

“Does it ensure, for example, that appointments to statutory agencies and corporations are merit-based…is it an appropriate time to ask to what extent our constitutional arrangements facilitate the distribution of spoils?” the respected jurist questioned.

According to Justice Batts, “Examination of the constitution becomes more pertinent as we observe decline in voter participation.

“It seems only 30 per cent of those registered to vote exercised their franchise in the last election. If you include all persons over 18 and, therefore, those eligible to register, the percentage is probably below 20 per cent. Whether this is due to apathy or to voter protest, it is appropriate to ask whether appropriate constitutional change, at this time, can stimulate voter participation,” he said.

Pontificating further as to whether greater public involvement in appointments to public institutions will stimulate voter interest or if the process by which ministers of government make appointments to State agencies and boards undermine public trust, Justice Batts said the question also should be asked whether a constitutional requirement for parliamentary oversight would encourage qualification, rather than party political affiliation as a benchmark for appointment.

Going further, he questioned whether consideration should be given to providing constitutional security of tenure to oversight bodies such as the Independent Commission of Investigations (INDECOM), the Integrity Commission, the Office of the Contractor General, the Electoral Commission, the Office of the Public Defender, the National Environment and Planning Agency (NEPA), the Office of Utilities Regulation (OUR), “thereby allowing the membership to function without concern for political or other recrimination”.

“The blueprint is there, because judges and the commission appointing judges are protected in our constitution by entrenchment, although this can be improved upon,” Justice Batts declared.

He, in the meantime, said another question is whether public participation may be encouraged by direct election of the prime minister.

Said Justice Batts: “He could then be free to select his Cabinet from any in our society, and not necessarily from the Members of Parliament. The voter can then separately vote for his constituency representative to represent his interest in Parliament and hold the Cabinet to account.”

The question remains, he said, as to whether going this route “will result in greater interest in public affairs”.

“Do we, in other words, after 63 years really need to constrain our thinking in the manner of Westminster?” he asked, going on to note that the question of the removal of the monarchy is another to be answered.

“The framers chose to deeply entrench this provision, meaning that a referendum is required to remove the king of England as king of Jamaica. The reigning sovereign in England is, under the constitution, the monarch of Jamaica while in England, however, all the sovereign’s roles are performed by a governor general appointed here in Jamaica on the advice of the prime minister. The governor general has some important functions — not all are ceremonial. He acts either on the advice of the prime minister or on the advice of his local privy council here in Jamaica. Contrary to popular belief, the governor general does not act on the instructions of the monarch in England,” Justice Batts schooled.

“The English monarch actively functions as king of Jamaica only when he visits. That being the situation, removal of the English monarch as head of State should have no real impact on how Jamaica’s Government or governmental institutions run,” he stated.

In questioning whether Jamaicans would be satisfied with the governor general continuing to operate as he does now, under a new regime, Justice Batts said: “The speech read by the governor general each year at the opening of Parliament is not his. It is written by the prime minister for him to read. This is another aspect of Westminster, which we faithfully copied. Why should the head of State not be free to address the Parliament and people of Jamaica in his own words on issues he thinks are appropriate?”

The question also arises, he said, as to whether the governor general should be elected or continue to be appointed by the prime minister.

“Whether elected or appointed, should he be removable at the whim of the prime minister as he is now? These, I think, are legitimate questions for Jamaicans to ask after 63 years,” he said.

As to the issue of Jamaica’s final appellate court, Justice Batts said, “At present, this [final appellate court] is the Judicial Committee of the Privy Council in England — a body established to advise the English monarch on matters, among other things, pertaining to the colonies. We should ask ourselves: ‘If the purpose of removing the monarch as head of State is to further our independence, is it consistent with that objective to retain the Judicial Committee of the Privy Council as our final court?’

“A final court, ultimately, decides policy as it is the final word on constitutional and legislative interpretations. It, ultimately, sits in review of IDT [Industrial Disputes Tribunal] decisions. Whatever motivated the framers to retain such appeals in 1962, it certainly is a legitimate question after 63 years to ask whether we really need such a foreign court. You may wish to ask yourself whether the Caribbean Court of Justice, which Jamaica helped to create and pay for, is an institution more consistent with our status as an independent nation. These are all questions for you to consider,” he noted.

Prime Minister Holness, in April 2023, named the members of the Constitutional Reform Committee to, among other things, assess how the passage of time has impacted the recommendations of the 1995 Joint Select Committee on the Constitutional and Electoral Reform Report, with the work being done in three phases.

According to the Jamaica Labour Party Administration, the first phase of reform will involve replacing the British monarch as head of State with a Jamaican president. The Opposition, however, is insisting that a decision on the country’s final court must also be made in tandem.

In December last year the Constitution (Amendment) (Republic) Bill, 2024 to amend the Jamaican Constitution so as to transition the country towards a republic was tabled in the House of Representatives and placed before a joint select committee for review. Opposition members, however, have since January boycotted those proceedings, saying they will not return until the Government explains why it has not yet chosen to accede to the Caribbean Court of Justice as its final appellate jurisdiction, over the UK-based Privy Council.

In December last year the Constitution (Amendment) (Republic) Bill, 2024 to amend the Jamaican Constitution so as to transition the country towards a republic was tabled in the House of Representatives and placed before a joint select committee for review.