Black Immigrant Daily News

Among the main challenges within the Government that are believed to have led to the creation of the now relatively new Ministry of Legal and Constitutional Affairs, headed by former Attorney General Marlene Malahoo-Forte, in January of this year, was the widespread national focus on separating from the British Monarch through securing republican status for Jamaica.

In June of this year, Malahoo-Forte Marlene indicated that republic status for the island is likely to be facilitated, based on the constitutional requirements, by the next General Elections, which are constitutionally due in 2025.

The minister gave the timeline during her contribution to the Sectoral Debate in the House of Representatives.

“The goal is to ultimately produce a new Constitution of Jamaica, enacted by the Parliament of Jamaica, to, inter alia, establish the Republic of Jamaica as a parliamentary republic, replacing the Constitutional Monarchy, and affirming our self-determination and cultural heritage,” Malahoo Forte said.

“I am pleased to advise this Honourable House that the work to achieve this goal, while being done in stages, has formally commenced,” she added.

She said to get the work done, she is in the process of establishing a Constitutional Reform Committee, which will have at least two members of the parliamentary Opposition on board.

A significant majority of Jamaicans want the country to ditch the British Monarch as head of state, and those arguments have gained momentum since Caribbean neighbour Barbados did just that last November when it transitioned to a republic.

But, as has since come to light, the Barbados constitution is significantly different from the Jamaican one, which made it relatively easy for Barbados to become a republic, in comparison to the anticipated journey for Jamaica.

Malahoo Forte told the House that “There are many steps to be taken between now and the tabling of a new constitution….

“It is my intention, in leading the process, to work assiduously before the Parliament, unless, of course, something more pressing happens to overtake for the start of the next session,” she said while pointing out that the aim is to get the work done in time for the next session “so that the steps can be taken in time for the next General Elections”.

She reiterated that the British Monarch can only be removed as head of state in Jamaica if there is a two-thirds majority vote of all members of the House and Senate. The matter must also be put to the Jamaican people by way of a referendum, unlike what was required in Barbados.

Malahoo Forte said the Jamaica Labour Party (JLP) Government, with its vast majority of 49 seats, can secure the required two-thirds majority vote of 41 of the 63 votes in the House of Representatives. However, it needs the support of one member of the Opposition to secure the required two-thirds margin in the Senate.

She also noted that there are important substantive and procedural issues to be resolved to ensure a smooth transition to a republic.

“Each recommendation that I have looked at will require both careful thought as well as substantial resources to implement successfully. To further the process of moving from recommendations to action, I propose to appoint a Constitutional Reform Committee to include representatives from the Government, Parliamentary Opposition, relevant experts and the wider society,” she shared.

She said the reform work will involve a thorough and comprehensive review of the 1962 Constitution of Jamaica, “as we have to determine the extent to which the existing structure of Government ought to be modified or preserved.”

“In the same way that for very practical purposes, all that existed prior to Independence could not be got rid of, we cannot now get rid of all that we have. The same dilemma that was faced then between the desire for change and the necessity for continuity, is being faced now.

“Jamaica boasts a high degree of stability in its democracy, which should never be taken for granted,” Malahoo Forte added.

Of note, in an interview in September, Malahoo Forte said there has been a delay in the naming of the promised Constitutional Reform Committee.

Her latter announcement came amid increased scrutiny on the work of her newly formed ministry, primarily in initiating the process of Jamaica becoming a republic.

The minister said after further consideration, she believed it was best to delay the constituting of the committee.

“When I advised the House that I would formally constitute the Constitutional Reform Committee, after I went back to the drawing board, I realised it may be wise to delay the formal constitution of the committee until we have the documents ready,” said the minister in September.

The update came amid calls for Malahoo Forte to take steps to quickly bring a bill to Parliament to begin the process of ending the country’s relationship with the British Monarchy, especially since the death of Queen Elizabeth II and the accession of King Charles III to the throne.

In the September interview, the minister said she says she accepted that more should be communicated about the work of the ministry, but insisted that work is already under way to reform the Constitution.

“I understand that I have not said much and I said to my team that sooner than later, I will have to say something about what is happening behind the scenes.

“The ministry is a newly constituted ministry and if you looked in the newspapers, you would have seen our advertisements for posts to be filled.

“We are still trying to get the pool of talent to deal with the work, but the work has commenced,” stated Mahaloo Forte.

Back in June in her Sectoral Budget presentation, she said a public education programme aimed at increasing the awareness of the laws of Jamaica, was to be implemented.

Malahoo Forte indicated that the public education programme is to augment awareness of the legislative process; the role of all stakeholders in the process; the need for full compliance with the law, and in particular with the Charter of Fundamental Rights and Freedoms; and the administrative/public law requirements for the exercise of statutory functions.

On the wider scope of the new ministry, she said: “The ministry’s portfolio responsibility for the subject of legal education will transcend the provision of monthly subventions to the Norman Manley Law School, to further include implementation of a robust programme to augment technocrats’ knowledge and awareness of the laws which govern the operations of their entities, the legislative review process, and their role in the process.”

She added that the ministry recognises the need to improve knowledge and understanding of legislation in each Cabinet Ministry’s portfolio.

“Enhanced knowledge and understanding will reduce, if not prevent, the Government’s exposure to court action and, ultimately, liability (and) it will also help improve confidence and integrity in Government.

“I look forward, with much eagerness, to implementing the public education programme on the laws of Jamaica,” stated Malahoo Forte.

In January in her first address to the Lower House as minister of the newly created ministry, Malahoo Forte said Parliament must revisit how it revises laws, stressing that it has been difficult to ascertain the complete and accurate state of legislation on any given subject.

In fact, she said having to relate to Jamaica’s laws is like “going through a maze”.

“Currently, and this is by way of example, the long title, the memorandum of objects and transitional provisions are not included in the revised laws. Neither do the revised laws indicate which provisions have been repealed, and the renumbering of sections and subsections is just out of whack,” she said, adding that the workload of the new ministry will be heavy.

The former attorney general also said the timeline between enactment and inclusion in revised laws must be reduced to ensure that the information provided is up-to-date and accurate.

“I was dismayed to learn that even our judges have fallen into error by relying on outdated publications,” she said.

Malahoo Forte told Parliament that the creation of her ministry may be regarded as the most serious attempt by any prime minister to revisit holistically, the legal and constitutional infrastructure of the country.

She said this has not been done since Jamaica attained Independence and immediately after, noting that the closest lawmakers have come to fundamental constitutional reform was when they passed the Charter of Fundamental Rights and Freedoms, which was more than a decade ago.

The minister argued that this should have been followed by a comprehensive review of laws to make them compliant with the charter, given its binding nature.

“This comprehensive review remains undone, leaving the legal architecture in an unsatisfactory state,” she said, adding that, “The work is clearly cut out for this new ministry.”

On October 5, Malahoo-Forte tabled the new Bail Act in the House of Representative. This was months after she gave a very controversial precursor to the Bill in the House during her Sectoral Debate presentation back in June.

Then she warned that individuals on murder or gun charges will not be allowed to “remain at large”.

“I should like to advise the Honourable House that a new Bail Act is coming. I wanted to table it today, but we are revising the wording of some clauses,” the minister told her colleagues then.

“I will say no more at this stage, except that if yuh on murder charge, you cannot be at large, and if yuh on gun charge, yuh cannot be at large,” she added.

Jamaicans have often expressed anger at the courts after people charged with murder go on to commit other murders while being out on bail, and so too individuals charged with gun crimes, who then feature in new crimes after being granted bail.

But on October 5, Malahoo-Forte focused more on some other provision of the new Act. These include that a judge in Jamaica will have the authority to prescribe whether a defendant who is granted bail should wear an electronic tracking device or ankle bracelet when the Act takes effect.

The Act also states the circumstances under which a defendant may be denied bail, including those charged with murder, and if the crime was committed in certain places, such as within a Zone of Special Operation (ZOSO).

Another notable provision is contained in Section 14 of the Bill, which outlines that a person who absconds while on bail faces up to five years in prison for the offence, if convicted in a Parish Court, and up to seven years if the conviction is in a Circuit Court.

Of note is that this conviction in the case of absconding bail will run consecutive to the offence for which the defendant was before the court in the first place.

A defendant is determined to have absconded if he:

Fails to surrender to custody; or

Having reasonable excuse for failing to surrender to custody, fails to surrender to custody as soon as possible after the time originally appointed for the defendant to surrender to custody.

Meanwhile, running closely to what was previously stated by Malahoo Forte, persons before the courts on murder charges will likely be denied bail.

According to Section 7 (2), bail is (will be) denied if the offence is murder and where self-defence does not arise on the prosecution’s case.

According to the Bill, bail is also (will be) denied if the murder was committed within a ZOSO, in any area in respect of which a state of public emergency is in force under the Emergency Powers Act, or any area within which a cordon is established or a curfew is imposed under section 50B of the Constabulary Force Act.

Additionally, bail could be denied where the deciding official is satisfied that there are grounds for believing that the defendant, if released on bail, would:

Fail to surrender to custody;

Commit an offence while on bail; or

Interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

And, bail could also be denied where a firearm was used in the commission of the offence; where the defendant came into possession of the firearm unlawfully, or where the firearm is a prohibited weapon as defined in section 2 of the Firearms (Prohibition, Restriction and Regulation) Act.

Bail may also be denied to a defendant who is charged with or convicted of an offence punishable with imprisonment if the deciding official is satisfied that the defendant should be kept in custody for the defendant’s protection or, where the defendant is a child, for the defendant’s welfare.

Malahoo Forte explained that one of the primary reasons why the Bail Act of 2000 is being repealed and replaced, is that all statutes enacted prior to the replacement of chapter three of the Constitution of Jamaica with the new Charter of Fundamental Rights and Freedoms in 2011, must be reviewed, “especially those which engage fundamentally guaranteed rights and freedoms”.

The review is to ensure the statutes comply with the charter.

The Bill is to go to a Joint Select Committee of Parliament before it is debated and voted on for passage into law.

Malahoo Forte, in remarks on the House floor, urged her colleagues to read the Bill carefully before making any pronouncements the granting of bail at three stages – pre-charge, post-charge and post-conviction in defined cases.

The Bill sets out clearly who the deciding official is who will be able to grant bail, noting that essentially, this is the judge, the justice of the peace and the police constable, who in this case, is neither the arresting officer nor an officer involved in the investigation of the offence.

“In cases of pre-charge bail, the police officer is to be at the rank of or above superintendent of police,” the minister indicated.

She further said the question of bail in relation to a child is to be determined by the Children’s Court in accordance with the provisions of the Child Care and Protection Act, with requirement that for a the conditions of bail by the child until the child attains the age of majority (is no longer a minor).

Another issue that Malahoo-Forte has faced in her ministerial portfolio has been the Supreme Court ruling in relation to States of Emergency (SOE) and the right to life – Jamaica Gleaner article

She noticeably took issue with at least one aspect of the Supreme Court judgment in the lawsuit that was brought against the attorney general by Roshaine Clarke of St James.

The court not only upheld the challenge that was brought by Clarke against the 2018 state of emergency in St James, but declared the Emergency Powers Regulations unconstitutional.

In noting that for weeks before then, the country was preoccupied with discussions on rights and freedoms, Malahoo-Forte said n paragraph 86 of the judgment, the court indicated that the right to liberty is the most important right of every human being.

File photo of a state of emergency (SOE) checkpoint.

That she shared he own opinion of.

“I have been reflecting on that, and as I think of this event where both sides of the aisle are united in the outcry, I really part company with that part of the judgment, because where I am coming from it is the right to life that is the top-tier right for me,” she told colleague lawmakers in Parliament.

She was then referring to the shocking slayings of a mother and her four children in Cocoa Piece, Clarendon arlier that day.

“My reference is not meant to decry anything, but to simply say that from where I am looking at it, and in particular in the context of this occasion, the right to life is the top-tier right,” Malaho Forte insisted.

She said if “we can’t enjoy that right, nothing else can be enjoyed”.

The minister has also indicated that the preparation of materials for upload to the Jamaica Laws website is in progress.

“The Law Revision Secretariat has completed and delivered revised laws for three legislative years, 2016, 2017 and 2018, during the reporting period of fiscal year 2021-2022, and has also completed and finalised update for the 2019 statutes,” Malahoo Forte said back in June.

She noted that the next steps are the completion of typesetting and proofreading for 2019 subsidiary legislation, and for legislative years 2020 and 2021.

The minister indicated that the update of the website is under way, with upload of 2016 revised laws (Statutes and Subsidiary Legislation) then some 50 per cent complete, as 70 pieces of new and amended legislation had been uploaded.

In addition, the Acts of Parliament 2001, 2005 to 2020, have been uploaded, and 80 per cent uploading of the Jamaica Gazettes 2001 to 2021 had been achieved.

Meanwhile, a digitisation project is ongoing to convert and index copies of the Jamaica Gazette, Proclamations, Rules and Regulations and Extraordinary from the hard copy and soft copy. This is for the purposes of preservation, maximisation of storage space, as well as to create digital content that can eventually be organised and made available online to the public.

The Ministry of Legal and Constitutional Affairs (MLCA) has also received approval from the Finance and the Public Service Ministry for the implementation of its structure.

Acting Permanent Secretary in the MLCA, Wayne Robertson, in a recent interview, said a start-up organisational structure was accepted for core positions.

“For example, the permanent secretary’s office will be fully staffed, and we have also received approval for all the core technical positions. These include the Constitutional Reform Directorate and the Legal Education Directorate, which are critical. I singled out those two because of the body of work that would be required for the coming months and years,” he said.

Robertson noted that the Constitutional Reform Directorate will focus on the constitutional change agenda.

“We would have to educate Jamaicans about the transition from a constitutional monarchy to a republic, what that entails, the timelines and the role of the Jamaican people in the process,” he indicated.

The work required to facilitate this process involves the establishment of a Constitutional Reform Committee, which Robertson said is to be done soon.

“We have identified some members already, and discussions are ongoing with others.

“At the appropriate time we will make a formal announcement regarding the committee, but the matter will have to be taken to Cabinet as well, so we are working on that,” he said.

He said a term of reference has also been drafted for the committee, which will guide its work.

“A policy paper is also being crafted with respect to the constitutional reform work programme. In addition to that, the minister would have articulated the steps required to take us to the finishing line… in terms of how we deal with the deeply entrenched provisions and the majority required,” he said.

“The (Ministry), supported by its two departments, the Legal Reform Department and the Office of the Parliamentary Counsel, is to provide technical guidance and support to the legislative teams in the other) ministries, with a view to improving efficiency, coordination and the quality of new and amended laws,” he said.

Also, a new Legislative Production Management System (LPMS) is to be rolled out by June 2023. This was disclosed by Malahoo-Forte during her contribution to the 2022-2023 Sectoral Debate in the House of Representatives on June 7.

“The LPMS is a comprehensive, modern, computerised tool, capable of managing the life cycle of legislative documents – from drafting to publishing. Once introduced, it will connect all Government entities involved in the drafting and publishing of legislation. This will redound to a more efficient legislative review process, and reduction in the amount of paper used,” Malahoo Forte said.

The Ministry of Justice commenced the process of operationalising the LPMS a few years ago, but the implementation of the system has been affected by delays.

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