Life, Liberty and the Pursuit of Happiness are fundamental rights embedded in the minds of human beings at birth. The people of Jamaica accept a constitution with laws and regulations that protect those rights and interests, not grant them.
The Government of Jamaica, i.e. the two political parties at Gordon House, state that the people of Jamaica wish to change their constitution that was fashioned by the collaborative effort of the British Government and the Jamaican Government at Gordon House to hand down to the people. The emphasis for change is for Jamaica to become a Republic by removal of the British monarch as head of state.
The system for a change of this type is carried out by the majority party with a stranglehold on Parliament, traversing a minefield of obstruction for altering the provisions that are made: “Subject to”, “in so far as”, “unless”, “deemed” or “not be deemed” and the mathematical figures of two-thirds and three-fifths. Here, people who were excluded along the way will have a final decision at a referendum.
The authority for governance in the present constitution starts at the result of the contest between two political parties at general elections for Parliament and culminates with the victor taking all. Here, card-carrying members of the victorious party have first call at the distribution of the country’s resources, and the loser goes hungry. A process that invites tyranny and instability for government.
Former Prime Minister P J Patterson got it right when he described our politics as “a fight for scarce benefits and spoils carried on by hostile tribes that seem to be perpetually at war”.
The constitutional structure for election to Parliament is based on the population in a prescribed area to form a constituency. With this process there is no guaranteed provision for individual interests that can be carried forward to a parliament of all the people with conflicting interests. The campaign for election is carried out for re-election and the results show who is rejected, not who won.
The wrong approach
A directive to the Ministry of Legal and Constitutional Affairs from the Cabinet is for the Constitutional Reform Committee to provide guidance to the people and Government of Jamaica on the historic move to abolish the Constitutional Monarchy.
This is governance from the top down with no commanding influence of the people from the bottom. I respectfully invite the Government to reconsider the format from the top down initiated by political parties that are not recognised in the constitution.
I submit, with respect for the 15 wise and talented individuals in their respective avocation, as members of the reform committee there will always be the risk of providing a document that may not satisfy a majority of the people at a referendum and the last stage may be worse than the first as the scriptures teach us.
This is not an uncommon experience for past colonies of the British Empire where constitutions are handed down and not made by the people at the inception of political freedom, and the people rebel. This is how I understand the sad story today in Sudan, Pakistan and other former colonies like Myanmar (Burma) held together by military force with the denial of fundamental human rights in the foray for political power. Jamaica should avoid such tragedy.
I here present my thoughts for a new procedure for a comprehensive reform of the Jamaica constitution, including replacing the British Monarch as head of state for Jamaica with the fundamental human rights of life, liberty and the pursuit of happiness deeply entrenched. The dates and times in the draft documents are a mock presentation for what is mandated by section 49 for alterations of the present 1962 constitution
A new constitution for Jamaica must be declared by the people as their constitution created by the people for the people.
In summary, the proposal replaces political parties as the medium for political governance, especially for sharing the nation’s resources equally among all the people.
More importantly, decisions for political governance are made by the people initially at the level of organisations they freely joined for the pursuit of their happiness; be it earning their living from agricultural, industrial enterprise, entertainment or any other venture, including political aspiration. From there decisions are carried by a democratically elected representative to a larger gathering of representatives from similar organisations, each with their own rights for the pursuit of happiness. There, all are subject to the rights and freedoms of others by an anti-monopoly stratagem.
This is a democratic process for a constitution with institutional competition for political power in governance. This is a constitution where all views contend from the bottom up in the pursuit of happiness. The proposal is not inventing the wheel — see the Addendum that follows where State interests in the USA Federal Constitution are transposed to Sectoral interests in Jamaica’s unitary constitution.
THE NEW CONSTITUTION
The People of Jamaica declare that as of the first day of August 2023 there shall be a Governor General of Jamaica and a Constitutional Commission consisting of a President and members appointed as below.
The present Governor shall remain in office at the pleasure of the Commission. The Judicature shall remain as set out at Chapter VII of the 1962 constitution.
- The first President of the Commission shall be appointed by the Governor General on recommendation of the Prime Minster after consultation with the leader of the opposition party in Parliament for a period of seven years with subsequent appointments on election by the people not to exceed one succeeding term in office.
- The President shall perform the functions of the Prime Minister set out in the 1962 constitution acting with the consent of the other members of the Commission appointing a Cabinet for policy.
- Other members of the Commission will consist of mass membership originations appointed by the Governor General for a period of four years
- The Commission shall perform all the functions of the Parliament set out in the 1962 constitution
- Each member organisation shall advise the Governor General of the individual elected to be appointed to the Commission as its representative with an alternate for a period of four years
- Consultants, not exceeding three, may be appointed by the Governor General at the request of the Commission.
- Initial permanent members of the Commission are:
- The two recognised political parties will have one vote each
- Members of Local Government with one vote for each county
- The Rastafarian community
- The Church — both established an evangelical
- The Judiciary — the High Court and the parish courts
- The Bar association
- Th Jamaica Constabulary Force
- The Army
- Employers Association
- Registered workers organisations
- The Jamaica Agricultural Society
- The Manufacturers Association
- The Exporters Association
- The Association of Journalists
- The Jamaican Diaspora in the USA
- The Jamaican Diaspora in the UK
This list constitutes the full voting membership of sectoral interests represented in the constitution made by the people for the people. This is to ensure equal rights and justice for all the people and protection for their inalienable right to life, liberty and the pursuit of happiness embedded by nature in all human beings.
The procedure replaces the individuals’ interest at a constituency level by their interest at a national level. The change highlights the disenchanted with political representation who do not vote at elections as the results show. Otherwise, the unemployed and the disenchanted have a voice through the political party of their choice or attachment to a professional association of mass membership to have a vote in the Commission. Or, God forbid, the birthplace for People Power to overthrow a government as happened in Sri Lanka (former British Colony Ceylon).
The list is not closed to application for membership by other mass membership organisations; neither is there a restriction on merger of representation for organisations with similar interests.
These proposals are designed to deepen democracy in governance by the people where their interests are represented at every stage of the process by a President with executive power and a Commission (call it what you will) with legislative power.
This is a constitution built by the people from the foundation up, rather than from the top down like a hole in which to fall.
On July 18,2023, the draft Constitution shall be submitted to the electors qualified to vote for members of the House of Representatives for approval by an ordinary majority vote of the people as set out at section 49 of the 1962 constitution.
AND if approved:
- The 1962 Jamaica Constitution is repealed and replaced by the new Constitution to take effect the first day of August 2023
- Any subsequent amendment to the new constitution shall likewise be submitted to the people by the Constitutional Commission for approval. This relates especially to an amendment to the Judicature for a final court of appeal and the composition of the voters’ list for a Referendum as matters of urgency.
LAW & LIBERTY
Forum 1 November 2022
The Upside-Down Constitution and Its Critics
Michael s. Greve
The separation of powers, and corresponding checks and balances constitute a competitive arrangement. The separation of powers is an anti-monopoly device. The next move, of needs, is to make the separate institutions rivalrous, by giving them the means and the motives to block mutual encroachments. (I did not make that up: James Madison did.) Federalism is quite a bit like that: multiple, separate states, with turf-protective incentives.
What does institutional competition get you? Tyranny prevention and constitutional stability, Madison explained apropos the separation of powers and checks and balances.
- Frank Phipps, KC, is a veteran attorney