Ap­pear­ing on the CVM TV show “CVM at Sun­rise” in Ja­maica on May 20 in­stant, Prime Min­is­ter An­drew Hol­ness told the hosts, Yen­di Phillips and Den­nis Brooks, that his Ja­maica Labour Par­ty (JLP) Gov­ern­ment holds the view that “our fi­nal court should be a Ja­maican fi­nal court.”

In am­pli­fy­ing his point of view, he said, “The peo­ple should have a say; that’s num­ber one for us. And sec­ond­ly, if we are hav­ing a fi­nal court to be repa­tri­at­ed, it shouldn’t go to Port-of-Spain; it should come to Kingston. That has been our po­si­tion.”

In drop­ping this con­sti­tu­tion­al bomb­shell the day be­fore his Gov­ern­ment pub­lished the “Re­port of the Con­sti­tu­tion­al Re­form Com­mit­tee on the Tran­si­tion to the Re­pub­lic of Ja­maica and Oth­er Mat­ters” re­vealed that he was tak­ing a po­si­tion on the CCJ is­sue be­fore the pub­li­ca­tion of the re­port on May 21. There was di­vi­sion in­side the com­mit­tee as three peo­ple from the 15-mem­ber com­mit­tee did not sign the re­port, name­ly the two op­po­si­tion mem­bers, Sen­a­tor Don­na Scott-Mot­t­ley and An­tho­ny Hyl­ton.

At­tor­ney Hugh Small al­so did not sign the re­port. Last week, I high­light­ed the quote from the Ex­ec­u­tive Sum­ma­ry of the Re­port as it re­lat­ed to Ja­maica’s fi­nal ap­pel­late court. How­ev­er, the ac­tu­al com­men­tary in the body of the re­port throws more light on the Gov­ern­ment’s re­luc­tance to em­brace the CCJ.

Un­der the head­ing in para­graph 12 en­ti­tled “The Is­sue of the Fi­nal Ap­pel­late Court,” the re­port read as fol­lows: “12.1 There have been con­sid­er­able dis­cus­sions on the ques­tion of whether Ja­maica should, at this time, abol­ish ap­peals to the Ju­di­cial Com­mit­tee of the Privy Coun­cil (JCPC) and sub­sti­tute the Caribbean Court of Jus­tice (CCJ) as its fi­nal ap­pel­late court. Such a change is un­like­ly to be achieved un­less the two (2) po­lit­i­cal par­ties rep­re­sent­ed in Par­lia­ment are in sup­port.”

Un­like oth­er pro­pos­als in this re­port, where­by the com­mit­tee over­ruled the po­si­tions of civ­il so­ci­ety on var­i­ous is­sues, the com­mit­tee ex­pressed am­biva­lence on this one. Nowhere in the re­port was there any men­tion of the po­si­tion tak­en by the Prime Min­is­ter in his break­fast tele­vi­sion in­ter­view.

The ad­vo­ca­cy of Ja­maican na­tion­al­ism as the ba­sis for not mak­ing a de­ci­sion on the re­moval of the JCPC and re­plac­ing it with the CCJ is a po­lit­i­cal po­si­tion of the Gov­ern­ment and not the com­mit­tee.

Para­graph 12.2 of the re­port reads as fol­lows: “12.2 At the com­mence­ment of its work, the CRC un­der­stood the Gov­ern­ment’s po­si­tion to be that the is­sue of the fi­nal court would be con­sid­ered at a lat­er stage while the Op­po­si­tion was press­ing for it to be in­clud­ed in the first phase of the work.”

It is clear that de­lay­ing the con­sid­er­a­tion of the CCJ telegraphed op­po­si­tion to the pro­pos­al. The Prime Min­is­ter’s tele­vi­sion in­ter­view served to con­firm that with his com­ment, which re­called shades of the 1961 Ja­maican ref­er­en­dum on whether Ja­maica should ac­cede to get­ting its in­de­pen­dence un­der the um­brel­la of the West In­di­an Fed­er­a­tion or whether it should walk alone. The elec­torate chose the lat­ter.

Ac­cord­ing to para­graph 12.3 of the re­port, which ad­dressed the sit­u­a­tion at the com­mence­ment of the com­mit­tee’s work, the fol­low­ing is quot­ed: “12.3 Since then, the Leader of the Op­po­si­tion has in­di­cat­ed on a po­lit­i­cal plat­form that he will not sup­port the re­form if it ex­cludes a de­ter­mi­na­tion of the fi­nal Court at this time. The po­si­tion of Gov­ern­ment re­mains that it should be dealt with at a lat­er stage and that the mat­ter be ful­ly de­bat­ed in the pub­lic sphere.”

This was the para­graph where the is­sue of the court be­ing lo­cat­ed in Kingston and not Port-of-Spain should have been dis­cussed. The Prime Min­is­ter put his own spin on the is­sue in his tele­vi­sion ap­pear­ance the day be­fore the pub­li­ca­tion of the re­port.

In­deed, the CRC formed the view that the con­flict­ing po­si­tions of the Gov­ern­ment and the Op­po­si­tion pose a se­ri­ous risk to the suc­cess of the re­form work. The com­mit­tee con­clud­ed as fol­lows: “12.5 As a way of help­ing to re­solve the dilem­ma, the CRC con­sid­ered whether the lead­ers would as­sist in build­ing con­sen­sus and al­so, if there is no con­sen­sus, whether the is­sue of the fi­nal court should be placed on the ref­er­en­dum bal­lot.”

The com­mit­tee passed the CCJ chal­ice and re­fused to drink from it. The ques­tion now is whether Prime Min­is­ter Hol­ness has poi­soned it with his break­fast com­ments. 

Prof Hamid Ghany is a Pro­fes­sor of Con­sti­tu­tion­al Af­fairs and Par­lia­men­tary Stud­ies at The Uni­ver­si­ty of the West In­dies (UWI). He was al­so ap­point­ed an Hon­orary Pro­fes­sor of The UWI up­on his re­tire­ment in Oc­to­ber 2021. He con­tin­ues his re­search and pub­li­ca­tions and al­so does some teach­ing at The UWI.