On May 21 in­stant, the Ja­maican Gov­ern­ment pub­lished the Re­port of the Con­sti­tu­tion­al Re­form Com­mit­tee on the Tran­si­tion to the Re­pub­lic of Ja­maica and oth­er mat­ters. It was pub­lished by the Min­istry of Le­gal and Con­sti­tu­tion­al Af­fairs as Min­istry Pa­per No 24 of 2024.

One of the most strik­ing rec­om­men­da­tions in the re­port reads as fol­lows:

“4.14. Fi­nal Ap­pel­late Court–No con­sen­sus was reached on the is­sue of the Fi­nal Ap­pel­late Court. As such, there is no rec­om­men­da­tion for an amend­ment to the Con­sti­tu­tion in that re­gard. How­ev­er, con­sen­sus could be built through a meet­ing be­tween the lead­ers, fail­ing which, the is­sue could be placed on the ref­er­en­dum bal­lot.”

This was a very sig­nif­i­cant avoid­ance of the Caribbean Court of Jus­tice (CCJ) as a re­place­ment for the Ju­di­cial Com­mit­tee of the Privy Coun­cil (JCPC).

That ab­sence of con­sen­sus re­lates di­rect­ly to the fact that the JLP Gov­ern­ment of Prime Min­is­ter An­drew Hol­ness is op­posed to the adop­tion of the CCJ as the fi­nal ap­pel­late court for Ja­maica in place of the JCPC, while the PNP Op­po­si­tion led by Mark Gold­ing has pub­licly stat­ed that they will not sup­port the re­pub­li­can pro­pos­als to amend the Con­sti­tu­tion un­less the CCJ is in­clud­ed in the bill.

The amend­ment process for the deeply en­trenched pro­vi­sions of the Con­sti­tu­tion, which would in­clude the re­place­ment of the JCPC with the CCJ, would fall un­der the fol­low­ing de­scrip­tion, as out­lined in the re­port it­self as fol­lows:

“3.3. Mem­bers are asked to note that in or­der to amend these deeply en­trenched pro­vi­sions, a bill for an Act of Par­lia­ment must be tabled in the House of Rep­re­sen­ta­tives (the House). A pe­ri­od of three (3) months must elapse be­tween the in­tro­duc­tion of the bill in the House and the com­mence­ment of the first de­bate on the whole text of that bill in that House. A fur­ther pe­ri­od of three (3) months must elapse be­tween the con­clu­sion of that de­bate and the pass­ing of that bill by that House. The bill must be passed in each House by the votes of not less than two-thirds (2⁄3) of all mem­bers of that House. There­after, the bill must be sub­mit­ted to the elec­tors qual­i­fied to vote for the elec­tion of mem­bers of the House of Rep­re­sen­ta­tives, not less than two (2) nor more than six (6) months af­ter its pas­sage through both hous­es and ap­proved by the ma­jor­i­ty of the elec­tors vot­ing.”

How the par­lia­men­tary arith­metic is con­fig­ured, the JLP Gov­ern­ment com­mands 49 seats in the 63-mem­ber House of Rep­re­sen­ta­tives, which will al­low it to at­tain the two-thirds ma­jor­i­ty re­quired; how­ev­er, in the 21-mem­ber Sen­ate, where there are 13 gov­ern­ment sen­a­tors and 8 op­po­si­tion sen­a­tors, the Gov­ern­ment is un­like­ly to have its way as four­teen sen­a­tors are re­quired for a two-thirds ma­jor­i­ty. Ja­maica does not have in­de­pen­dent sen­a­tors.

The word­ing of the para­graph in the Re­port (4.14) that an­nounces no con­sen­sus on the fi­nal ap­pel­late court ap­pears to leave open the door to hav­ing the mat­ter sub­mit­ted to a ref­er­en­dum.

Strate­gi­cal­ly, this will al­low the Gov­ern­ment to gauge what sup­port there is for the CCJ pro­pos­al in the ab­sence of hav­ing to take a po­si­tion on it. The Leader of the Op­po­si­tion asked the op­po­si­tion mem­bers of the Con­sti­tu­tion­al Re­form Com­mit­tee not to sign the re­port.

There is a stand­off be­tween the Gov­ern­ment and the Op­po­si­tion on the CCJ is­sue. The Gov­ern­ment wants to move for­ward with the tran­si­tion of Ja­maica from a monar­chy to a re­pub­lic, while the Op­po­si­tion is de­mand­ing that there be no grad­ual ap­proach but rather a twin-head­ed re­form to both the re­pub­lic and the CCJ re­place­ment of the JCPC.

In a let­ter from Gold­ing to Hol­ness on May 7 in­stant, Gold­ing made it clear that the Op­po­si­tion would not be sup­port­ing the move to make Ja­maica a re­pub­lic if the change to the CCJ was put on the back burn­er.

Hol­ness re­it­er­at­ed his op­po­si­tion to the CCJ in a CVM TV morn­ing show in­ter­view on May 20, where he sug­gest­ed the need for an in­dica­tive ref­er­en­dum on the is­sue. He said that the peo­ple must have a say, and sec­ond­ly, if Ja­maica is to have a fi­nal court to be repa­tri­at­ed, it should not go to Port-of-Spain but to Kingston.

The CCJ is­sue is at a stand­still as Hol­ness wants a lo­cal Ja­maican apex court, while Gold­ing wants the CCJ.

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.