Jamaica’s 61 years of democracy should not be taken for granted. Successful government “of the people, by the people, for the people” requires the meaningful engagement and participation of every citizen. Critical to any discussion of Jamaican democracy is an understanding of our Constitution, both in terms of its historical significance and its structure and content.
It also bears remembering that the Constitution is important, not just to individuals, but to companies in many ways. For example, it was just recently confirmed that the horizontal application of the provisions of our Charter applies equally to legal (such as companies) and natural persons. Even without such expansive horizontal provisions, companies have benefitted from constitutional arguments concerning, among other things, the power of taxation and the grant of exclusive licences.
A Constitution is a body of fundamental law established to regulate the system of government within a state. It is usually mainly concerned with defining and establishing the principal organs of government. It is therefore the source of governmental authority. It also prescribes the way, and the limits within which, the government’s authority is to be exercised, usually through a series of complex inter-relationships or checks and balances set up to constrain government power and ensure that the heart of democracy – the people – remain sovereign and protected.
In England, there is no written constitution. The people (through their representatives in Parliament, i.e., the legislature) are sovereign. A written constitution appears incompatible with parliamentary sovereignty because then it is the constitution and not the legislature that is supreme. However, written constitutions are usually interpreted in a manner that gives meaning to the sacred principle of democracy – that ultimate power rests with the people. Where there are written constitutions, they are interpreted by the judiciary, who, if not elected and/or accountable to the people in some other way, arguably wield considerable control.
There are therefore delicate balances to be worked out when creating or amending a constitution. Except where carefully considered to provide checks and balances, in general, the executive should not exercise legislative or judicial power, the legislature should not exercise executive or judicial power and the judiciary should not exercise executive or legislative power. In the USA, the President is the head of state and of the executive, but is not head of, or part of, the legislature. In Jamaica, the Prime Minister is the head of the executive and is also a member, and the head, of the legislature, to which his Cabinet is accountable. Lifting parts of one system and overlaying them onto another is therefore likely to be a recipe for disaster as the entire complex interplay of relationships between the different organs of government must be considered wholistically.
Each constitution is also a product of its own unique history and particular circumstances of time and culture. In a seminal constitutional case, Lord Diplock highlighted that Jamaica’s was “negotiated as well as drafted” by people “nurtured in the tradition of the basic concept of separation of legislative, executive and judicial power as it had been developed in the unwritten constitution of the United Kingdom.” The new Constitution was therefore “evolutionary and not revolutionary” in that it “provided for continuity of government through successor institutions”. Lord Diplock pointed out that constitutions that emerged out of these conditions all had a common pattern and style of draftsmanship, conveniently described as “the Westminster Model”.
The original Jamaican Constitutional Committee was criticized for being unduly orthodox in accepting the Westminster Model but, according to Dr Lloyd Barnett in his seminal work The Constitutional Law of Jamaica, rejected any imputation of being “addicted to colonialism”. Mr Manley had this to say: “Let us not make the mistake of describing as colonial, institutions which are part and parcel of the heritage of this country. If we have any confidence in our own individuality and our own personality we would absorb these things and incorporate them into our being and turn them to our own use as part of the heritage we are not ashamed of.”
Dr Barnett has also indicated that “the public was given a mere 30 days in which to make their representations. The public discussion groups which were organized received no government assistance or encouragement. Many of the important questions were settled before the public views were received by the Parliamentary Committees. Nevertheless, the almost complete absence of external participation in the preparation of the Constitution is an important autochthonous feature of the Jamaican Constitution.”
Autochthonous amendments to the Constitution require a grassroots approach, engaging knowledgeable citizens. So here, in summary form, is an overview of the Constitution, highlighting just a few of the many possible areas for reform. In Chapter I the supreme nature of the Constitution is set out. If any other law is found to be inconsistent with the Constitution the Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void. Chapter II addresses citizenship and, inter alia, sets out exactly who is a citizen, who is entitled to citizenship, the effect of marriage, deprivation of citizenship and membership in the Commonwealth. Should there be an amendment to reflect our goals and aspirations for family life? Chapter III as amended in 2011 is the Charter of Fundamental Rights and Freedoms. The Governor-General’s role is set out in Chapter IV. Chapter V deals with Parliament (which is comprised of His Majesty, a Senate, and a House of Representatives). It is notable for possible reform that there are no interim mechanisms to hold Members of Parliament accountable, whether through regular answers to constituents or impeachment provisions, and that local government is also not mentioned.
Chapter VI covers the Executive. The executive authority of Jamaica is vested in His Majesty and may be exercised on His behalf by the Governor-General either directly or through officers subordinate to him. However, there is no guidance on what exactly the executive powers are, nor is there any specific limit on the executive exercising legislative powers, which it does quite often now through the promulgation of regulations – a possible area for reform.
Notably, the Cabinet, which is collectively responsible to Parliament, consists of the Prime Minister and such other Ministers (not being less than 11) from among the members of the House and not less than 2 nor more than 4 members of the Senate. The executive and legislature are therefore expressly mixed, arguably as part of the checks and balances. However, whether this in fact works where Members of Parliament rely in large measure on the Prime Minister for the allocation of “scarce benefits and spoils” to their constituents is a question to be considered in reform.
Chapter VII concerns the Judicature. The Supreme Court, Court of Appeal, Appeals to Her Majesty in Council (i.e., the Privy Council) and the Judicial Service Commission are all established. There is no mention of the lower courts, and the appointment, discipline and removal of judicial officers is also perhaps an area for consideration in reform.
Chapter VIII establishes the Consolidated Fund and the office of the Auditor-General, among other things. Would including the Integrity Commission and the Access to Information Tribunal strengthen the nation’s fight against corruption and ensure the health of a free press?
Chapter IX addresses the public service and establishes the Public Service Commission and the Police Service Commission, among other things. Considerations for reform include that there are no provisions for discipline and the public service does not include executive agencies and their boards. The Constitution also does not make specific reference to the Jamaica Defence Force (JDF).
Chapter X gives general information about the various Commissions established by the Constitution and about resignations from Constitutional offices generally.
This brief summary reveals only some of the many areas ripe for consideration in the constitutional reform process. This is not just a matter of removing the monarchy or even changing the final court, both of which are distinct issues. Removing the monarchy does not, of necessity, mean the final court must be changed. There are many other possibilities that should be considered, even if they are ultimately decided against. The sovereign people should be meaningfully engaged without external participation to maintain the autochthony of our Constitution.
I encourage you to participate in the process and act with resolve to “help Jamaica, under God, increase in beauty, fellowship and prosperity”.
Alexis Robinson is a Partner at Myers, Fletcher and Gordon, and is a member of the firm’s Litigation Department. She may be contacted at email@example.com or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.