Tue | Dec 1, 2020

Ruel Gibson and Shena Stubbs-Gibson | Path for Jamaica to become a republic

Published:Sunday | October 4, 2020 | 4:05 PMRuel Gibson and Shena Stubbs-Gibson - Guest columnists
Britain marked Queen Elizabeth II’s 94th birthday, Tuesday, April 21, 2020, with silence, as the nation in lockdown amid the COVID-19 pandemic forgoes the usual gun salutes and ringing of bells. With thousands dead, the monarch decided that the celebrato
Britain marked Queen Elizabeth II’s 94th birthday, Tuesday, April 21, 2020, with silence, as the nation in lockdown amid the COVID-19 pandemic forgoes the usual gun salutes and ringing of bells. With thousands dead, the monarch decided that the celebratory display of military firepower would not be “appropriate”.

Recently, Barbados announced its intention to cut ties with the Queen of England (the Queen) and to become a republic. This, they said, would be accomplished by next year October, the 55th anniversary of Barbados’ independence from Britain. Observers of this move speak of a possible domino effect in the region, with Jamaica following suit. Barbados would become the third member of the so-called “big four” in CARICOM (Jamaica, Barbados, Guyana, and Trinidad and Tobago) to go republic, leaving Jamaica as the last territory standing with the Queen.

Given the above, it is an opportune time to look at the relevant portions of the Jamaica Constitution and the process that may have to be followed in the event Jamaica also wishes to go this route. Jamaica gained Independence on the August 6, 1962, by way of the Independence Act. The act states at Section 1, Subsection 1:

“As from the sixth day of August, nineteen hundred and sixty-two, Her Majesty’s Government in the United Kingdom shall have no responsibility for the government of Jamaica.”

On July 23, 1962, at the court in Buckingham Palace, the Queen gave her assent to another law. It was called the Jamaican (Constitution) Order in Council. That law, contained in its First Schedule, of the Jamaican Constitution. The document, as it is today, has seen some amendments, however, the majority of it has survived since 1962.

The Constitution of Jamaica, at Section 68 (1), reads: “The executive authority of Jamaica is vested in Her Majesty the Queen … ”, and at Subsection (2): “... Subject to the provisions of this Constitution, the executive authority of Jamaica may be exercised on behalf of Her Majesty by the Governor-General either directly or through officers subordinate to him.” The Queen is, therefore, Jamaica’s head of state, and the governor general acts on her behalf.

AMENDMENT TO CONSTITUTION

Section 49 (1) of the Constitution states that by an Act of Parliament passed by both Houses alter any of the provisions of this Constitution. For Jamaica to gain republican status, therefore, there must be an amendment to the Constitution to remove the Queen as head of state and to abolish (or deconstruct and reconstruct) the role of governor general. Subsection (2) sets out the protocol for amending various sections of the Constitution while Subsection (3) states:

“… In so far as it alters Subsection (1) of Section 68 of this Constitution; … or any of the provisions of the Jamaica Independence Act, 1962, a Bill for an Act of Parliament under this section shall not be submitted to the Governor-General for his assent unless – (i) a period of three months has elapsed between the introduction of the Bill into the House of Representatives and the commencement of the first debate on the whole text of that Bill in that House and a further period of three months has elapsed between the conclusion of that debate and the passing of that Bill by that House, and (ii) subject to the provisions of subsection (6) of this section, the Bill, not less than two nor more than six months after its passage through both Houses, has been submitted to the electors qualified to vote for the election of members of the House of Representatives and, on a vote taken in such manner as Parliament may prescribe, the majority of the electors voting have approved the Bill. (4) A Bill for an Act of Parliament under this section shall not be deemed to be passed in either House unless at the final vote thereon it is supported - (a) in the case of a Bill which alters any of the provisions specified in subsection (2) or subsection (3) of this section by the votes of not less than two-thirds of all the members of that House; or (b) in any other case by the votes of a majority of all the members of that House.”

Removing the Queen as head of state will require an amendment of Section 68 and as such, according to Section 49, Subsection 3, above, will necessitate a referendum in which the majority of votes cast are in favour of removing the Queen. A two-thirds majority in both houses of Parliament will then be required in order to have the Queen removed.

REMOVING PRIVY COUNCIL

If Jamaica intends to remove the Queen as head of state and to become a republic, then this may also be an opportune time to deal with the issue of removing Her Majesty in Council (the UK Privy Council) as Jamaica’s final Court of Appeal and replacing it with the Caribbean Court of Justice (CCJ).

Section 110 of the Constitution sets out the circumstances in which “an appeal shall lie to Her Majesty in Council”. An amendment to Section 110 is not covered by Subsections (2) and (3) of Section 49, and as such, does not seem to require any more than the assent of the majority of the members of both Houses in order to have that right removed. This issue was, however, ventilated in the case of Independent Jamaica Council for Human Rights (1998) Ltd and Others v Marshall-Burnett and Another: PC 3 Feb 2005 (The CCJ Case), which challenged the establishment of the Caribbean Court of justice as Jamaica’s final Court of Appeal, and, by extension, the abolition of the Privy Council. The Legal Scoop finds Professor Stephen Vasciannie’s summary of the CCJ ruling in his June 4, 2015, letter to The Gleaner to be particularly on point. According to Professor Vasciannie:

“In the CCJ case, the Privy Council appeared to accept the view that appeals to the Privy Council could be abolished by a majority vote in both Houses of Parliament: Section 110 of the Jamaican Constitution, which safeguards appeals to the Privy Council from Jamaica, is not an entrenched provision ... .

“In essence, the Privy Council’s reasoning is that the Jamaican Court of Appeal and Supreme Court are constitutionally entrenched, protected courts. Thus, in order to place a higher court above them, the legislature would need to follow the procedure for constitutional amendment that is appropriate for altering the status of the Court of Appeal and the Supreme Court. That procedure is clearly a two-thirds majority of both Houses.”

Since both parties have, on diverse occasions, expressed their support for the notion of removing the Queen as head of state and replacing the Privy Council with the Caribbean Court of Justice, the newly minted, widely popular JLP government now has the perfect opportunity to put both the matter of republic status and the CCJ to a referendum and subsequent vote in Parliament.

This would, therefore, be an opportune time to take a referendum to the people to decide on both issues.

- Ruel Gibson and Shena Stubbs-Gibson are attorneys-at-law. Send feedback to: shena.stubbs@rjrgleaner.com or follow on Twitter: @shenastubbs