A war of words is brewing between political scientist and civil society advocate Professor Trevor Munroe and Constitutional Reform Committee member Tom Tavares-Finson over the manner in which the Independence Constitution was crafted.
Munroe has claimed that the law was formatted behind closed doors, but Tavares-Finson, who is also Senate president, has insisted that the high rate of illiteracy at that time meant there were fewer people to consult.
In early May, Munroe, while speaking at a forum titled ‘A Conversation on the Constitution’ put on by the Jamaica Council of Churches in St Andrew, had criticised the method used by the 16-member committee which crafted the constitution, arguing that consensus was reached in a process which was closed to the public with a deliberate effort to conceal decisions that were made.
He said while the Jamaican public then was given 30 days to make an input, those submissions were made with no draft of what the thinking of the committee was, no identification of the issues that would be discussed and decided, and with no educational materials. Those submissions, he said, eventually had no impact as the fundamental decisions had already been made, resulting in the creation of a constitution that is not fully self-ruling.
But this week, during a Ministry of Legal and Constitutional Affairs public consultation with the Jamaica Umbrella Group of Churches, Tavares-Finson challenged Munroe’s argument.
“There are some critical matters that we would like to make an appeal to this group to help us get through to the people of Jamaica. I’ve heard people say the 1961/62 constitution was done in secret, but people who say that do not understand the nature of society in Jamaica in 1961. At that time, 70 per cent of the people were illiterate, the official leadership of the church was all English people, there was no such thing as social media, there was one newspaper,” Tavares-Finson said.
“The only organisations that were controlled by Jamaicans in 1961 were political parties, the trade unions, and agricultural societies; so when people are saying in 1961 they didn’t consult the people of Jamaica there was nobody to consult in terms of organised groupings. And if you look at the 17 or 18 people that drafted this constitution they were from a wide range of the Jamaican opinion that was available at the time,” he said.
“So when people say the constitution was born in secrecy, it was not; it was what was available at the time, because once you got out of these groupings you came into the colonial authorities,” he added.
However, Munroe, on Thursday, stuck to his initial stance, stating: “In 1961/62, a constitution-making committee comprising 16 persons — 11 from the House of Representatives and five from the Legislative Council (the Senate) — first met on October 31, 1961 and within three months those 16 persons deliberated, concluded and produced a constitution which was taken to England, the colonial power at the time, and largely accepted.
“So, let no one fool you, the historical record is clear, the constitution we now have, 61 years later, is a constitution made by our representatives and endorsed by the British colonial powers at the time,” he said.
“So this is a lesson to be learnt, because out of that process we have what we now have — a monarch who those 16 constitution-makers decided the only way we could change that is by the vote of the electorate,” Munroe stated adding, “We don’t want to repeat that bad experience where, because of that exclusionary approach, we have a monarch that can only change in the way they decided, and, secondly, we have an executive and a prime minister who, to use the words of Norman Manley, ‘They give powers to that prime minister to be able to bully the Cabinet, the Parliament, and literally to have a constitutional dictatorship for five years’.”
Professor Munroe, who reiterated that a contrasting lesson can be learnt from the later constitutional process which began in 1991 and concluded in 2011 with the addition of a Charter of Fundamental Rights and Freedoms, said “The lesson from this is, involve the people, listen to them, and educate them, prior to making decisions, and consult.”
He, in the meantime, rebuffed Tavares-Finson’s ‘illiteracy’ defence.
“Go out and ask a man about the constitution; you have to educate people, and believe you me, this idea that because they do not have a CXC (Caribbean Examinations Council pass) or university degree they do not have intelligent suggestions and recommendations to be made is absolutely false,” Professor Munroe said.
“This idea that I have heard one member of the committee express, that in 1962 there was little basis for any consultation because at the time somewhere in the region of 78/80 per cent of our people were illiterate; illiteracy does not mean lack of intelligence, illiteracy does not mean you do not have the capacity, once you have the basics as to what a constitution is [you can] make suggestions as to what should not be in there and what should be,” Munroe said.
He, in the meantime, said the current process came about in an “insufficiently consultative and inclusive way” with five areas of consensus arrived at before the public consultations.
Noting that the committee, in response to public criticism, seems to be making an effort to start over in a more consultative way, Munroe applauded the decision to publish the minutes of the meetings so far held.
“Eight meetings have taken place so far; the minutes need to be published immediately,” he said while calling for internal meetings of the committee to be live-streamed.
Prime Minister Andrew Holness, in April, named the members of the Constitutional Reform Committee, which is co-chaired by Minister of Legal and Constitutional Affairs Marlene Malahoo Forte and Ambassador Rocky Meade.
The body will, among other things, be required to assess how the passage of time has impacted the recommendations of the 1995 Joint Select Committee on the Constitutional and Electoral Reform Report. The Government intends to hold a referendum relating to Jamaica’s proposed transition to a republic.
The work will be done in three phases.
The committee held its first public consultation in Montego Bay at the end of April.