Statement by the Attorney General and Minister of Justice to the Senate on the Reform of the Constitution and the System of the Administration of Justice

As Honourable Senators are aware, this year 2007 marks the bi-centenary of the abolition of the trans-Atlantic slave trade which brought captured Africans in bondage to the Western Hemisphere and, particularly, to the Caribbean.

As a national family, we are rightly marking this event, for it signalled the beginning of a settled population that no longer thought of themselves in terms of the tribe from which they were forcibly taken but as the peoples of a new country – Jamaica.  In a very real sense, therefore, we are in this year celebrating the genesis of what would, in the fullness of time, become the Jamaican nation – one people from the many who came, at different times and in different circumstances, from all corners of the earth, but predominantly in bondage from  the continent of Africa.  The year 1807 was therefore both an end and a beginning.

The government is satisfied that there can be no better way to mark the significance of this historic moment in 2007 than to begin immediately the process of removing from our Constitution the last remaining vestiges of colonial status. 

These are three in number: 
• First, our Constitution is not legally rooted in any act on the part of the Jamaican people but in a statute of the United Kingdom Parliament – The Jamaica Independence Act. 
• Second, our Head of State is the hereditary monarch of the erstwhile colonial ruler.  While it is true that the duties of that office are performed by a resident Governor General, you should be made aware, as Senators, that if His Excellency wishes to visit and to have audience with Her Majesty, whose representative he is, he now needs to obtain a visa from the resident High Commissioner of the United Kingdom. 
• Third, our judicial system is still headed by the same institution that governed it while we were a colony, namely, the Judicial Committee of the Privy Council. 

These constitutional positions have practical consequences of the most fundamental and far reaching nature. The executive arm of our Government which, itself, is not subject to control by any other executive power or entity, entered into a treaty with other sovereign nations to establish a Caribbean Court of Justice as our final court of appeal. Our legislature ratified that treaty and then, by the majority stated in the Constitution as sufficient for amending an un-entrenched section of the Constitution, amended such a section in order to implement the treaty obligations of the government and people of Jamaica.  As Senators are aware, the Judicial Committee of the Privy Council made a decision which the Constitution obliges us to accept and which has so far prevented this treaty from being implemented. 

I now wish to announce that the Cabinet has approved a programme of action to bring our Constitution fully into the 21st Century.  I will outline this programme in the chronological order of action that the items themselves dictate.

Constitutional Reform
The first is the reform of our constitution itself. As members of the Senate are aware, a Commission was established in the year 1992, under the Chairmanship of the late Mr. Justice Kerr and subsequently Dr. Lloyd Barnett, to consider proposals for constitutional reform and to make recommendations for Parliament’s consideration.

The Commission submitted its final Report in February of 1994.  It included a wide range of suggested changes that would, in effect, create a new Constitution.  The Commission’s Report was the subject of prolonged and careful consideration by a Joint Select Committee of both Houses of Parliament which presented its own Report in 1995.

Since that time, the issues dealt with in that Report, and in particular a proposed new Charter of Rights, have been the subject of intensive deliberations.  Some agreed amendments to the original proposal have been made by another Joint Select Committee whose mandate had been renewed from time to time.  Eventually, in July of last year, a full Report of all these recommendations was presented to Parliament. 

As a result of this prolonged process of discussion and consultation, there has emerged a substantial body of proposals for far reaching constitutional proposals which has received the agreement of both sides of the House of Representatives and of the Senate and the apparent acceptance, by both parties, of modifications and compromises to their original positions. 

It has been agreed that:
• we should no longer have as our Head of State the hereditary monarch of the United Kingdom, but that we should become a Republic, with our own indigenous President as Head of State;

• the Head of State would not be elected directly by the people but should be chosen by a process that will enable the person selected to be a symbol of national unity and who would not exercise executive or legislative powers but would be vested with the responsibility to make certain sensitive appointments that are required to be made without partisan bias or influence;

• we would maintain the basic structure of Parliamentary government, with the Prime Minister appointed on the basis of commanding the support of the majority of the Members of the House of Representatives and that Ministers, appointed by the Prime Minister, must be chosen from one or other of the Houses of Parliament;

• the new Charter of Rights will, in form and content, reflect the development in international thinking and practice that has taken place since our present Bill of Rights was fashioned in 1962; 

• the new Constitution should come into being by an Act of the Jamaican legislature enacted by the process appropriate to amending the deeply entrenched clauses of our present Constitution;

• the new constitutional provisions will therefore receive the express stamp of approval not only from all the Parliamentary representatives of the people, but of the electorate itself in a referendum.

Notwithstanding the agreement on these fundamental issues and a number of other important details, there still remain some outstanding matters that need to be settled before the final constitution document can be prepared.  For example, the precise method of selecting the President is still to be finally agreed.  In any event, even if the outstanding issues could be speedily resolved, it is obviously impractical to attempt to introduce such a far reaching and fundamental alteration in our governmental system within the limited time available before the next general election.

The Cabinet has therefore directed that there should be the production of a “green paper� outlining the elements of the new Constitution that have already been agreed and containing a suggested strategy for resolving those few important matters that, as I have indicated, are still not fully settled. 

The outline of this “green paper� would not, of course, be cast in the language of an Act of Parliament but would contain, in a form that is readily understood, the essential features clearly and accurately stated. It will be used as the basis for a campaign to familiarize the public with the proposals and provide an opportunity for further comments and suggestions, while keeping the issues alive in the public domain.

It is intended that, at some appropriate time during this year, a resolution will be brought to Parliament recommending that, immediately following the next general election, legislation should be prepared effecting these changes in our constitutional system.

It should be our pledge and commitment, as Parliamentarians, as we mark the bi-centenary of the abolition of the trans-Atlantic slave trade, that these initiatives should, in time, come to be established and recognised as part of the signature of the year 2007.

We should also be prepared to examine any new suggestions as to how we might strengthen our constitutional arrangements directed at improving the governance of our country. The nation cannot, however,  be held hostage to the consideration of new suggestions which have not been subjected to the searching rigour to which the positions that are already agreed have been.

De-linking from the Privy Council: Subscribing to the CCJ

As Senators are aware, Parliament has passed the legislation that is required to enable Jamaica to subscribe to the original jurisdiction of the Caribbean Court of Justice. However, the attempt to substitute the appellate jurisdiction of the court for that of the Privy Council has, as I have said above, been nullified on the ground that the appropriate parliamentary procedure was not followed.  The procedure which the Privy Council said should have been followed would require the voting support in Parliament of at least some of the Opposition members as well as the other requirements in the Constitution relating to the amendment of an entrenched provision.

Pursuant to that decision, I initiated a series of meetings between a team from the Ministry of Justice and representatives of the Parliamentary Opposition. Those discussions reached what appeared to be an agreed legislative programme. The leader of the Opposition representatives, however, noted that he would have to consult with his party and his Parliamentary colleagues to confirm a formal agreement on which the government could rely. My Ministry has, for its part, obtained from Parliamentary Counsel a draft of the proposed legislation and we have made it available to the Opposition. We have not yet received their formal indication of support.

The legislative scheme embodied in this draft, which is acceptable to the government, follows the procedure laid down by the Privy Council and it also satisfies the two main issues that the Opposition has always emphasized as its fundamental points of concern. These are, firstly, that the court should, from the beginning, be entrenched in the Constitution and, secondly, that the court should not begin to operate unless and until its underpinning provisions were submitted to the general electorate for their approval by some process limited to that specific issue as distinct from being one of many issues canvassed in a general election. 

To achieve these objectives, a proposal emerging from the discussions with the Opposition representatives involved the passage of two separate legislative measures.  One would amend Section 110 of the Constitution so as to establish the appellate jurisdiction of the Caribbean Court of Justice as part of the Jamaican Constitution.  The other would amend section 49 of the Constitution so as include the new Section 110 in the list of ordinarily entrenched sections.  These two Bills would come into effect simultaneously because each would contain a clause making the activation of each dependent on the enactment of the other. 

Since Section 49 is a deeply entrenched section, there is the constitutional requirement that, after passage in Parliament, the inclusion of new provisions therein would have to be submitted to the electorate for approval. This will ensure that the electorate would have the opportunity, from the very beginning, to give their stamp of approval to the institution of the Caribbean Court of Justice in place of the Privy Council.

It is therefore intended that during this calendar year this legislation will be laid on the table of the House of Representatives and thereafter dealt with in accordance with the relevant constitutional requirements.

Reform of the System of the Administration of Justice
In addition to this exercise to address these fundamental constitutional changes, there has already been set in motion the process for the foundations to be laid for the modernization of our justice system. 

As Senators are aware, a high level Task Force, assisted and guided by the Canadian Bar Association, is currently conducting a comprehensive review for the transformation of the system of the administration of justice in Jamaica.  Their Report and recommendations are promised for June 30 of this year. 

While we cannot venture at this stage to anticipate what the Report will recommend, it is highly probably that whatever recommendations are made and accepted will involve expenditures that cannot now be identified or quantified. This means that the budget, which is now in the process of being developed, cannot include any specific provisions for implementing such recommendations as are made.  It is profoundly meaningful, however, that the government indicate that there is every intention to take seriously, and implement expeditiously, the proposals emanating from the Reform Task Force.

It has, therefore, been accepted by the Cabinet that the budget for the next financial year will, in some appropriate way, reflect the fact that funds will be provided specifically to foreshadow the implementation of such recommendations as may emerge from the Report of the Task Force on the reform of the system of the administration of justice.

As we move steadfastly to effect the transformation of our justice system, I wish to restate that the government is firmly committed to the view that the final steps must now be taken, in this year 2007, to terminate all remnants of past colonial control, including the substitution of our indigenous Head of State for the British hereditary monarch and the substitution, at the apex of our judicial system, of a regional court which we have co-operated to shape and to establish.

It is fully appreciated that no Parliament can bind its successor. We will, nevertheless, during the course of this year of profound historic significance to all of us as part of the Jamaican family, invite the Parliamentary Opposition to signal, by a solemn undertaking in this Parliament, that they are prepared to co-operate in having these changes effected in our constitutional arrangements within the time frame and in the manner that has been outlined. 

A. J. Nicholson, QC
Attorney General and Minister of Justice

January 19, 2007