CRC to recommend ECJ enshrined in Constitution without political ombudsman functions
Published:Friday | May 3, 2024 | 7:49 AMJovan Johnson/Senior Staff Reporter -
The Constitutional Reform Committee (CRC) is to recommend that the Electoral Commission of Jamaica (ECJ) be enshrined in the Constitution without the functions of the political ombudsman, a consensus proposal that the Cabinet will be hard-pressed to vote down.
The Marlene Malahoo Forte-chaired committee is expected to sign off on a report with the CRC's phase one recommendations today.
The document will then head to Cabinet for its approval after which the Government will decide whether to pursue further consultations at the parliamentary level or go straight towards proposing laws that will kick-start the move towards removing the British monarch as Jamaica's head of state.
Ahead of February's local government elections, the Government used its majority in both Houses of Parliament to approve a law that subsumed the Office of the Political Ombudsman, the country's political referee, in the ECJ.
The ECJ, comprising independent members and an equal number of representatives from the two main political parties, is the state body that manages Jamaica's elections. It emerged from the deadly political turmoil of the 1970s and has earned international respect for transforming the electoral system.
The Opposition People's National Party and other critics have argued the move will bring the commission into the political fray by asking it to sanction partisan behaviour and risk damaging its independence.
The proposal for the ECJ to be enshrined in the Constitution maintains a recommendation by a 1990s constitutional commission.
"The recommendation is for the role of ombudsman not [to] be included in the entrenchment of the ECJ primarily because there is no consensus on that. There is consensus on the ECJ getting constitutional protection," said an official who was not authorised to speak on the matter.
It means that the Cabinet will have to decide whether to support a recommendation that conflicts with a legislative change that it agreed to and concretised in law in February.
If the proposal is pursued, it could mean that the ombudsman role would once again have to operate as a stand-alone authority.
Justice Minster Delroy Chuck, who piloted the change, has dismissed arguments the ECJ risks being tainted by political controversy as "ill-conceived".
"It is the Government’s position that the ECJ is the most appropriate mechanism to operationalise the functions of the political ombudsman, as there are inherent similarities in the legislatively prescribed functions of both parliamentary commissions," he said.
But the first ECJ chairman, Professor Errol Miller, has slammed the change as "by far the worst legislation affecting electoral law passed by the Jamaican Parliament since becoming a nation in 1962".
"Subsuming the functions of the political ombudsman into the electoral commission and making each commissioner political ombudsman or ombudswoman fundamentally alters the commission and brings every commissioner into direct engagement with the minutiae of partisan politics," argued Miller in a speech on April 3.
Miller was the first chairman of the ECJ, serving from 2006 to 2012. He chaired the predecessor Electoral Advisory Committee from 2000 to 2006.
The first phase of the CRC's work is primarily built on advancing recommendations for constitutional change that have had longstanding consensus mainly through the Joint Select Committee on Constitutional and Electoral Reform that did work in the 1990s.
Some of the other recommendations include the appointment of a non-executive president in a Jamaican republic. The official's role would not be entirely ceremonial, however, as the new head of state would retain certain powers and get new ones including nominating independent senators to an enlarged upper chamber.
The process of appointing a president will involve the two Houses of Parliament voting separately at a joint sitting, a move that preserves the requirement of at least one opposition senator for the appointment to be made.
There is a proposal for the Office of the Public Defender, a government body set up to protect Jamaicans from state abuse, to be given constitutional protection.
The Government is hoping that some of the changes, including transitioning from the British monarch will take place before the next general election due by September 2025.
A sticking point is the Opposition's insistence that it will not support Jamaica becoming a republic while Britain's Privy Council remains the country's final court of appeal.
That Privy Council issue is slated for the CRC's second phase. There is pressure on the Holness administration to rethink its position if it wants phase one reforms to be implemented.