IN my article, published in yesterday's Sunday Observer, I looked at the renewed effort to revise our constitution, listed the issues on which bipartisan agreement was reached during the deliberations of the 1990s, those on which differences remained unresolved, and new issues that might need to be considered.
The need for review and revision of the constitution is beyond question. The 1962 Jamaican Constitution has proven to be a sturdy anchor, but it is not perfect. Nothing ever is. For example, it did not guarantee the right to vote, fundamental though that is — an omission that was only rectified with the enactment of the Charter of Fundamental Rights and Freedoms in 2010. But throughout our 60 years of Independence, although we have been through some rough times when our constitutional order was sorely tested, the anchor held.
Today I want to share some thoughts on the modalities for reviewing and revising our constitution. By "modalities" I am not talking here about the procedures prescribed for changing the constitution. I did that already. I am talking here about how we get to that point.
Our founding fathers, in their wisdom, designed the constitution with some heavy belts and braces to ensure that no matter how awesome a government's popular vote or parliamentary majority may be, it is unable, by itself, to disturb the elements of the constitution that they considered to be the cornerstones for the good order and sustainability of the nation state.
Fifty-one of the 138 sections of the constitution and 37 parts of other sections cannot be changed without a two-thirds majority in each House of Parliament, which means that there must be agreement between the Government and the Opposition. Another seven sections and six parts of other sections cannot be changed, even if there is agreement between the Government and the Opposition, without a referendum being held. And if there is disagreement between the Government and the Opposition on a matter to be put to a referendum, it requires a 60 per cent majority by the voters and, in some instances, a two-thirds majority for it to be approved. In almost 80 years of voting under adult suffrage, no result has ever achieved that level of majority. Talk about belts and braces!
Manoeuvring through the belts and braces
What this means in practical terms is that consensus between the Government and the Opposition is a sine qua non for any significant change in the constitution. Such a consensus does not come about easily. The Government and the Opposition, like chickens bred for cockfights, are instinctively combative, even when there is not much to combat about. This is not peculiar to us. Just look at the United States!
The deliberations of the 1995 joint select committee were not without friction; there were times when it seemed as if it could implode. What I think made a huge difference was the presence on the committee of Edward Seaga and David Coore. They were the two surviving members of the joint select committee that prepared the 1962 Jamaican Constitution, and together they brought considerable institutional memory to the discussions. What was perhaps even more important is that they had mutual respect for and a good relationship with each other, so some of the issues that were contentious when we were all at the table were quietly ironed out when Seaga and Coore sat down together. Those positions that one side or the other would never agree to accept, such as a directly elected executive president which the People's National Party (PNP) preferred, were quietly abandoned.
It may be that the joint select committee of 1995 was spared a stalemate because the issue of abolishing appeals to the United Kingdom Privy Council, which the PNP held dear, while it was discussed, did not become a deal-breaker because the Caribbean Court of Justice as an alternative did not then exist.
I mention all this to make what I consider to be a crucial point. The new joint select committee that is embarking on a "thorough and comprehensive" review of the constitution, if it is to even leave the starting blocks, must recognise that nothing can be achieved unless there is agreement between the Government and the Opposition. This requires that anything which would impair the chances of arriving at such an agreement must be carefully avoided. It cannot afford lapses of misunderstanding, miscommunication, or scant regard. It cannot afford political posturing and one-upmanship.
It requires that positions are put forward for serious discussion, not grandstanding, and it requires that they be considered seriously and earnestly, not simply dismissed out of hand. The relationship among the members has to be consensus-seeking, inside and outside of formal meetings. Much of the discussions will have to be held in the corridors and at a dinner table. The green and orange shirts, hats, and ties have to be left at the door. If there is ever a scenario that requires that Jamaica be put first, this is one such. That is what our founding fathers ordained.
Sadly, it is not an auspicious time for these deliberations. The Government is at its midterm and the political temperature is rising. Campaign rumblings are not far away. The recent Don Anderson poll which showed the Jamaica Labour Party (JLP) and PNP in a statistical dead heat is not a helpful backdrop for consensus building. But the temperature is not, by any stretch, as hot now as it was in 1979 when both the JLP and PNP recognised that Jamaica had to be put first and we were able to reach consensus on how a credible and confidence-commanding election would be conducted. We did it before and we have it within us to do it again.
Bruce Golding served as Jamaica's eighth prime minister from September 11, 2007 to October 23, 2011.
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