Robert Buddan, Contributor
MR. PATTERSON has sounded another strong call for constitutional reform, a matter that he obviously wants to make serious progress on before retiring and a matter that has eluded the People's National Party (PNP) for 30 years. At the PNP's 65th conference he re-opened the terms for negotiations with the Jamaica Labour Party (JLP) and invited them to come back to the table.
Over the past 60 years Jamaica has had different experiences with constitutional development. It has experienced a comparatively advanced constitution, and then entered a period of constitutional stalemate and regression. Now the country has an opportunity to adopt a constitution much more advanced than the one we live with and one more suitable to current standards of democracy.
In 1944 Jamaica began to enjoy one of the most progressive constitutions among Britain's colonies, gradually advancing towards Independence over the next 18 years at a rate of progress greater than for most colonies. By 1962, Jamaica's Independence constitution confirmed its advanced constitutional status over most members of the Commonwealth, still being colonies. It was advanced in the context of the time. It was acceptable in a culture that favoured an authoritarian democracy which is what the constitution represented. But it is quite backward by today's standards of democracy.
A TURN TO CONSTITUTIONAL CHANGE
The Independence constitution was accepted by the JLP Government without question during its 10 years of Government from 1962 to 1972. The PNP was never really content with it and raised questions about it during its opposition. Two years after coming to power in 1972, the Manley Government tabled a position in Parliament to comprehensively review this constitution in light of experience with it since Independence.
Between 1975 and 1978 a constitutional reform unit planned public education towards review and reform. The PNP and JLP agreed on a republican status for Jamaica. This reform was drowned out by the political and economic conditions of 1978 to 1980. When the JLP returned to power no further progress was made on constitutional reform except that the process was renamed one of constitutional and electoral reform. But no reform took place.
The JLP had been happy all along with the "winner-takes-all", "first-past-the-post" Westminster system. The PNP resurrected the issue in 1989 when it won power. Michael Manley made it a main theme of his farewell speech in Parliament in 1992. He had also asked that the JLP and PNP agree on certain changes to the constitution and go straight to a referendum. Mr. Seaga wanted a constitutional commission instead. This commission was established in 1992 and submitted its report in 1995. The period was the high point of national debate on a new constitution. The proposals of the Constitutional Commission were debated in Parliament in 1997. After 1995, the debate was given an added dimension when the National Democratic Movement (NDM) offered constitutional reform with separation of powers on its platform. Since then, discussions on a Charter of Rights and progress on electoral reform (to make a referendum credible) have taken place. Now all seems ready for actual reform.
THE BASIS FOR REFORM
One of the tactical recommendations of the Constitutional Commission was that Parliament could go ahead and change those aspects of the constitution that it could agree on and was allowed to change and take the areas of disagreement to a referendum. For the time being, the Commission had recommended a modified Westminster structure of Government. The parties' representatives on the Commission had agreed on many significant changes but not on whether Jamaica should continue to have a prime ministerial or a presidential system. The talks in Parliament broke down in 1997 when the JLP said it had never agreed to the Commission's basis for reform.
It is this position the position of the Constitutional Commission that Mr. Patterson is once again offering with an additional concession that the PNP will set aside its call for a presidential system in order to break the stalemate so that other aspects of the draft constitution could be promulgated. This is a major concession and one could argue if it is worth making since much of the criticism of the system of politics and government is traceable to fundamental flaws of the Westminster system.
One wonders too if a concession to Mr. Seaga is justifiable considering that Mr. Golding represents a section of the party that is hopefully still in favour of fundamental change from Westminster to some form of presidentialism. Even if Mr. Patterson agrees to set aside the issue of what structure of Government should prevail, one would expect that Mr. Golding would want to use this opportunity to revive discussion in the JLP about presidentialism and ask that talks between Mr. Patterson and Mr. Seaga, should that take place, include this matter.
Nonetheless, there are good reasons for making the kind of concession that Mr. Patterson has made. Much time has been wasted, 30 years in fact. Jamaica has slipped from having a comparatively progressive constitution in 1962 to a backward one in 2003, one that belongs to a world of 40 years ago and is an embarrassment in the 21st century. Standards of democracy have passed the constitution by. It now has to catch up. We should not delay.
CONSTITUTIONAL MODERNISATION
Modern constitutions should be promulgated on the authority of an independent people and sovereign nation. They should not be gifts of colonial powers that preserve the sovereignty of a foreign monarch (itself an antiquated idea). They should bear Oaths of Allegiance to the people, not to a foreign power (a requirement removed fully 30 years after Independence and amazingly, under some protest).
Modern constitutions should be written and understood in the language of the people, not the language of legal and judicial elites who have been a part of the old aristocratic establishment of the Crown and its system of laws. People cannot understand their rights if a constitution is written in a language and style that are effectively foreign to them.
CONSTITUTIONAL DEMOCRATISATION
Constitutional democratisation means providing strong protection for political and civil rights. The new constitution will expressly recognise political parties and the right to vote and will entrench fundamental rights and freedoms in a special charter of rights so that rights and freedoms cannot be as easily suspended as at present.
The new constitution will add new rights such as the right to participate in free and fair elections, the right to a healthy and productive environment, the right of every child to free primary education, the right of all to fair and humane treatment and the right of every citizen to a passport (as a corollary to freedom of movement).
CONSTITUTIONAL GOVERNANCE
The new constitution will strengthen institutions of governance. Jamaica will become a republic. The Electoral Advisory Committee will become an Electoral Commission entrenched in the constitution. Officials will be subject to impeachment for non-performance, corruption and abuse of power. The Court will have stronger powers in judicial review. Local Government will be entrenched. The Senate will be enlarged with more room for independents and some provision for proportionality. In addition, the new constitution will reflect regionalism by incorporating the CARICOM Charter of Civil Society and the Caribbean Court of Justice.
By enacting a new constitution with the above features, Jamaica could once again have the most progressive constitution in the Caribbean and among developing countries. The draft constitution has many good ideas and importantly, it carries a new spirit, one that recognises the spirit of democracy, governance, human rights, human development and regionalism.
I encourage the JLP to seriously consider ways by which the reform process can go fast forward. Just as the parties sat together to construct the Independence constitution they can sit together to honour the work of the many national organisations and individuals who sat on or made representations to the Constitutional Commission. As Mr. Patterson and Mr. Seaga remarked at the first meeting in 1992, it was the first occasion on which Jamaicans had convened among themselves to promote a constitution for Jamaica. So far nothing has come of that. It is time to honour that public spirit and break the political stalemate on constitutional reform.
Robert Buddan lectures in the Department of Government, UWI, Mona. E-mail: rbuddan@uwimona.edu.jm.
