JAMAICA | Reform of the Constitution: A Glorious Opportunity Says AJ Nicholson

KINGSTON, Jamaica, April 27, 2025 - By A. J. Nicholson - Prime Minister Andrew Holness' scarce venture into the constitutional reform arena has not been encouraging. Significantly, though, it can be successfully argued that he is not to be held entirely, or indeed substantially, responsible.

 His recent unprincipled suggestion that the Opposition Leader has blocked Jamaica from becoming a republic represents a forgettable brush with the reformprocess.

What Jamaicans, including Mr Holness, have heard from the Opposition Leader is that his Party leadership appreciates the wisdom that fortified the authorities in almost all of the former colonies in their decision to leave the monarch's Court either before or at the same time as abandoning the monarchy.

What Mr Holness' government now frightfully seeks to accomplish has moved far beyond what is generally accepted as an awkward situation to constitute an unprecedented show of disrespect for the people, their employers.

In the case of Trinidad and Tobago, Mauritius, and the few other Republics which, acting way outside of the ordinary, have delinked from the monarchy while remaining tied to the monarch's Court, that decision was taken by legislators.

The Government correctly proposes to have both the legislators and the people vote to amend the Constitution for Jamaica to abandon the monarchy, seeking to fulfill the promise publicly notified by the prime minister in 2022 in the presence of the heir to the Throne.

But that is not where the story ends! Unprecedented, by so doing, the people would also have recklessly voted to keep themselves and all Jamaicans remaining wedded to the monarch's Court which is accessible only to the wealthy.

What is more, 1.2 Billion of the people's tax dollars have been provided in the Estimates of Expenditure for the pursuit of that disastrous, fanciful goal, projected from the Throne Speech.

The Opposition Leader refused to join in that calamitous plan, causing an irritated prime minister, joined by others, to openly declare that his stance amounted to blocking Jamaica from becoming a republic.

Whatever else that might be conjured up during the silly season, was the Opposition Leader not acting in dutiful service of the people, protecting their interests, particularly, of the overwhelming less fortunate majority?

That kind of artifice exemplifies the approach that the Jamaica Labour Party leadership has taken to constitutional reform during Andrew Holness' stewardship, causing the process to become mangled.

The buck plainly stops with him. In truth, however, blame cannot totally, or even in large part, rest with him. And fortuitously, a golden opportunity is on the horizon for the process to be put firmly back on track.

Within weeks, fifty five years will have passed since the first change to our Independence Constitution - detachment from the British court as our final Court of Appeal - was placed on the public policy agenda by the Government of Jamaica.

In mid-1970, in the early years along the Independence journey, a Regional Heads of Government meeting was held here in Kingston under the chairmanship of then Prime Minister Hugh Lawson Shearer. Another such meeting is scheduled to be held here in Jamaica in early July chaired by the Prime Minister.

At that 1970 meeting, Jamaica tabled a Motion, born of a developmental policy directive of the Shearer-led Cabinet, that there should be abandonment of appeals to the Judicial Committee of the Privy Council and for a regional final court to be established to which Jamaica would subscribe. The Motion was carried.

The main reason for that visionary caring decision, which remains the most urgent issue on the constitutional reform agenda, was Jamaica's attachment to a court to which only the wealthy have had access.

Nothing of significance was heard of the initiative from either side of the political spectrum until 1988 when then Prime Minister Edward Seaga, who had been a member of the Shearer-led Cabinet, advised another Heads of Government meeting in Antigua and Barbuda that Jamaica was urging the speeding up of the process for the creation of the regional court.

The constitutional reform process moved along smoothly over the years until then Opposition Leader Edward Seaga announced that his Party was insisting on a referendum being held to enable transition to the Caribbean Court of Justice.

Throughout all the years, since the inauguration of the court two decades ago in 2005, the leadership of his Party, including their legal advisors in and out of government, regrettably, became fixated on that call.

That fixation led Mr Holness to utter the only words Jamaica has ever heard coming from him concerning the transition: that it should be one of "three questions put in a grand referendum".

It was also the reason for him being held by the courts to have committed the most outrageous breach of our Constitution by conspiring with others, amazingly including a group of lawyers, to meddle with the provisions that govern membership of the Senate in order to stymie the transition initiative.

Edward Seaga was not a lawyer; neither is Andrew Holness. Their Party along with others had sought guidance from the courts concerning the constitutional path for the transition to be properly executed.

The declaratory advice received from the Privy Council judges did not include the requirement of a referendum. Therefore, that extra constitutional call by Mr Seaga, inherited by Mr Holness, was political in nature.

Do their legal advisors dispute that utilising that call which sprang from a partisan political root to block the passage of legislation which had faithfuĺly followed the Privy Council-declared route was an anti-democratic display, and an unapologetic refusal to abide by the rule of law?

Did they stand firm, demanding that their Party leadership fully understand that reform of the Constitution cannot be properly pursued outside of the constitutionally-required procedures?

Instead of providing guidance, they joined in that referendum call, allowing it to become embedded within the Party and among its adherents.

There is no evidence that they ever advised their leadership that not a single one of the former colonies that have made the transition employed the referendum route, the authorities being mindful that irreparable damage could be done to the sensitive judicial system.

Had the legal advisors impressed upon their leaders that those democratic, legal, indeed historic, truths could not be sidestepped, it is impossible to imagine how the reform process could have become mangled.

The referendum stumbling block would have long been cleared away, allowing the legislators to finally put behind us that visionary, caring 1970 policy initiative which propelled Jamaica to publicly signal its intention to subscribe to a proposed regional final appeal court.

Memorably, the most farsighted statement of Mr Seaga in relation to transition to the Caribbean Court of Justice has been completely ignored by his Party's legal advisors.

His final word of advice amounted to the following, that the authorities should keenly follow the operations of the court for an appreciable amount of time, make an assessment and then take the appropriate step.

Twenty years after the inauguration of the court, the eagerly-anticipated Regional Heads of Government meeting to be held at Montego Bay in July will provide a singularly inspirational opportunity for Jamaica to announce the breakthrough fulfillment of our treaty obligation to subscribe to the appellate jurisdiction of the regional court, signalled 55 years ago in a similar setting.

Before that meeting takes place, a challenging historic question must be answered by the authorities, with the considered views of the Government legal advisors urgently required:

"Do they regard it as being responsible, respectful and becoming, with Jamaica remaining attached to the Monarch's Court in the UK, for a Jamaican to be installed at the pinnacle of this internationally acclaimed regional Court by the representative of Jamaica's head of state, the Monarch, in circumstances in which Jamaica, a practising democracy, has refused to fulfill its treaty obligation to subscribe fully to the regional institution?"

Another golden opportunity will thereby be presented for Jamaica, on top of everything else, to show how we wish to be regarded among the community of nations by the treatment that we give to our international treaty obligations.

But certainly, the most troubling of those unanswered crucial questions, which all touch and concern nation-building, remains: What is the mystery that lies behind the interest of our disempowered majority continuing to be deliberately strangled, and their entitled privilege consistently denied to them by their own?

AJ NICHOLSON

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