Although I, along with Edward Seaga, constitute the only two surviving members of the committee that drafted the present Constitution, I do entirely agree with The Gleaner's editorial to the effect that the section which equates Commonwealth citizenship plus one year's residence in Jamaica as constituting eligibility to become a member of parliament is long overdue for reconsideration and altering.

The basic qualification should be citizenship of Jamaica and not citizenship of the Commonwealth. Furthermore, once that change is made, the requirement of one year's residence becomes quite unnecessary.

As far as I am aware, this basis of Commonwealth citizenship as a qualification, which incidentally is deeply entrenched in our Constitution, does not appear in any of the other Caribbean Independence constitutions.

The only explanation I can offer for this wide sweep of qualified persons for the purpose of Parliamentary representation is that, in 1961, the Commonwealth as a meaningful concept was definitely different than it is today. There were reciprocal exchanges of economic benefits among Commonwealth countries, particularly in relation to agricultural products coming from the colonised territories at preferential prices, and manufactured goods coming from the developed members of the Commonwealth either duty-free, or at highly competitive duties vis-à-vis other countries.

It was apparently felt at the time that these reciprocal benefits and obligations ensured the kind of mutuality of interests that made it safe to confer the privilege of legislative membership on Commonwealth countries as a whole. As we all are very much aware, these reciprocal benefits have either disappeared or have been so attenuated by globalisation that there is no such perceived mutuality of interest as was felt in 1961.

It is imperative, therefore, that we remove this outdated anomaly from our Constitution and treat, for this purpose of legislative representation, all Commonwealth countries as being on the same footing as the rest of the world.

I would, however, go much further, and I have no doubt Seaga is of the same view. What the Constitution needs is a comprehensive overhaul that would first of all remove other egregious anomalies. The first of these, in symbolism at any rate, is having our head of State as the hereditary monarch of another country.

The second is having our final Court of Appeal, which is granted the power to interpret the Constitution itself, that comprises judges from another country and that sits in that other country, and whose membership is chosen by a process in which we have no say whatever.

Other changes

In addition to this egregious-relics-from-our-past status, there are a number of other changes that experience has shown to be necessary. The most important of these is Chapter Three of the Constitution, which deals with the recognition of basic human rights and their protection by giving the courts power to nullify legislative enactment that offend them.

The effort that we made in 1962 was well-intentioned and has proved quite useful in many areas. It is marked by many omissions that our own experience, and the progress that has been made by other countries in this field, have shown that this chapter requires complete rewriting, to provide what is now recognised as essential for the intended purpose of protecting a much wider range of human rights and much more effective access to the protection afforded. There are other important changes needed, albeit of a less fundamental nature.

What is, therefore, needed is not a piecemeal tinkering with individual sections of the Constitution in response to problems, of either content or omission, as they arise from time to time. All of these inadequacies in our Constitution, as it stands, must now be dealt with in a package deal to rewrite the whole Constitution so that it presents a coherent and relevant vision of the society to which we aspire.

As it so happens, we have spent over 17 years in discussions among parliamentarians and with the general public concerning the necessary changes. These discussions have taken place first in a commission headed by the late Mr Justice Kerr, and subsequently, Dr Lloyd Barnett, followed by a number of Joint Select Committee meetings of parliamentarians.

It is gratifying to note that these discussions have resulted in wide areas of agreement among both the general public and, very important, among members of both sides in both Houses of Parliament. This means that there is now the possibility of commencing the actual process of complete constitutional reform that will remove the fundamental anomalies and omissions that have been identified, and correct the practical defects that experience has shown to be necessary.

I say "very important" with respect to parliamentary agreement between both sides of both Houses because this is where the process has to start. With one exception, most of these fundamental changes require a two-thirds majority in both Houses and some, such as, for example, Her Majesty the Queen of England being our head of State and the qualification of Commonwealth citizenship for election to the House of Representatives or appointment to the Senate, require in addition that after being passed by the legislature, with the required majorities, will have to be submitted to the people for their general approval in a referendum.

From this latter fact, it is impatient of debate that the revision process should be put together in one legislative enactment that will cover all the changes that have been passed in the appropriate manner by Parliament, and then the whole package presented to the electorate for approval. In that way, the new Constitution so created will truly be a Constitution that emanates from the majority of the people and therefore be truly a Jamaican Constitution.

It is, of course, true that there are still some issues that are unresolved. An examination of these issues reveals that with one exception, these are largely of a technical rather than conceptual nature, and with a reasonable amount of goodwill and the spirit of cooperation, can readily be resolved.

The one exception that has so far been a sticking point is the question as to whether there should be an indicative referendum prior to the parliamentary vote on the constitutional document.

In discussions that had been held before the change of Government, between then Attorney General A.J. Nicholson and Delroy Chuck, then spokesman in the House of Representatives responsible for constitutional reform, and their respective teams, it appeared that this issue had been resolved in favour of only one referendum taking place after the parliamentary vote.

It was recognised in those discussions that a so-called indicative referendum prior to a parliamentary approval, or for that matter, disapproval, would have no legal or binding effect. On the other hand, the referendum held after the parliamentary passage of the package legislation would be decisive.

The procedure of an indicative referendum appeared, therefore, to be no longer an issue. As it has happened, however, Chuck has not been given the responsibility for constitutional reform but has been given the high role of Speaker of the House. Whether by accident or design, this change of anticipated status has resulted in the question of the indicative referendum once more emerging as a delaying factor in the ability of Parliament to move forward with preparing debating and, hopefully, passing the package legislation which has taken so many years of intense discussion to arrive at the high level of agreement that has been reached.

Resolutions

I would humbly and respectfully, suggest that both sides should agree to resolve this matter and the other largely technical issues that might still be unresolved so that Parliament can set about the essential task of presenting debating and then submitting an improved, modern and relevant Constitution for the people of Jamaica.

There are those who will say that both the Government and Opposition should be spending all their time and energies fashioning solutions to the problems facing Jamaica in relation to our foreign-exchange earners particularly bauxite and alumina, and to our major employers of labour - sugar and bananas - rather than on constitutional issues.

This reaction is understandable in view of the grave short-term challenges that we now face, but I believe it to be profoundly mistaken. Both sets of issues, namely, the constitutional issues and the economic issues, have to be dealt with, equally energetically and, as far as possible, simultaneously.

See Part II in tomorrow's Gleaner

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