A suggestion by Prime Minister Andrew Holness that Jamaica should have its own home-grown final appeal court is being viewed as foolhardy by two legal minds here.

Holness, appearing on the morning television show
CVM at Sunrise on Monday, told hosts Yendi Phillips and Dennis Brooks that his party is firmly of the view that “our final court should be a Jamaican final court”.

He, however, said the process of deciding on an apex court for Jamaica should go through the “process of an indicative referendum”.

“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,” Holness said on Monday, even as he acknowledged that Jamaicans may vote to have the Caribbean Court of Justice (CCJ).

Port-of-Spain, Trinidad, is where the CCJ is headquartered.

The suggestion has not gone down well with veteran attorney Lloyd McFarlane who has termed the position “worrying” and a clear indication that the Jamaica Labour Party has no serious intention of abandoning the Privy Council in England for the CCJ.

“It’s not the first time we are hearing this opinion expressed by a leader of the Jamaica Labour Party. I believe Mr Bruce Golding [former JLP leader] some years ago had actually floated the idea, and at that time I was one of the persons who had responded. At that time it was not a viable proposition and it is still, at this time, not a viable proposition because Jamaica does not have the structures in place to support a final court of appeal now,” McFarlane argued.

“The resources that have been made available to our courts over the many years have really never been enough to do the job that is required; that is why there has been this serious backlog that we have been experiencing all of this time. And the monies that would be required to put structures in place for a final court would, at this time, be better utilised just improving the present court system that we have,” he said further.

“The prime minister taking this position at this time is worrying because what it means is that, if this matter then has to be put to a referendum, that vote will be politicised. That would be unfortunate because, let’s be frank, the Jamaican electorate is not entirely well educated in such matters and would be voting along party lines — and not necessarily in the interest of Jamaica itself,” Mcfarlane added.

According to the experienced attorney, a move to make the CCJ the final appellate court would make much more sense legally.

“The CCJ is already in place; Jamaica is already contributing to that institution without getting the full benefits because we are not a part of its appellate jurisdiction. But all well-thinking Jamaicans would want to see this country have a final appeal court here in Jamaica. I would like that too, and it is my hope that one day we might actually get there. But, that ideal that we should actually aim at should not be used at this point in time to muddy the waters because the effect of it would be that we would remain harnessed to His Majesty’s Privy Council,” he said.

“Once there is no agreement as to not just leaving the Privy Council but who we would be going to — whether the CCJ or a final Jamaican court — what it means for practical purposes is that we would remain linked to the Privy Council — and that, to me, would be really tragic,” McFarlane told the
Jamaica Observer.

In pointing out that once the parties actually agree there would be no need for a referendum, he said “this was actually stated by the Privy Council itself” when three Bills seeking to replace the Privy Council with the CCJ as Jamaica’s final appellate court were passed under the People’s National Party Administration and the JLP and other groups appealed it.

“I do not like the idea of our Jamaican judges and the court system being politicised. I am one of those who do not like the idea of judges being elected or anything like that,” McFarlane said.

Commenting on the constitutional reform process now in train, with a view to making Jamaica a republic in the first instance and a commitment to settle the final court at another phase, McFarlane said this is a political ploy.

“From the beginning I was of the view that this was done because Barbados had moved on under Mia Mottley and Jamaica had to catch up by removing the monarchy. The problem, of course, was that this present Administration seemed dead set against the CCJ from the beginning.

“I formed the view very early that all of this constitutional reform thing was essentially seeking to put in an unelected president to replace the governor general — really very little else — and that at no time would they actually take up the pressing matter of removing ourselves from the Privy Council,” McFarlane charged.

Noting that at the time the idea was first mooted he had opined publicly that, “if we are going to leave Her Majesty’s jurisdiction we can’t stay with the Privy Council” the veteran attorney said, “when you look at what the constitution now says, it is an appeal to Her Majesty in Privy Council, and if you don’t have Her Majesty, how are you going to have Privy Council? It is clear that the present Administration does not wish to do it together simply because they do not wish to leave the Privy Council for the CCJ”.

“Really, as a holistic legal position, you can’t move Her Majesty, or now His Majesty, and still be under His Majesty’s Privy Council. That makes no sense,” he added.

Another attorney, Alexander Shaw, addressing the issue said simply, “We are not ready for that.

“The starting point is that Jamaica is not incapable of governing itself. The judiciary is a part of the governance framework, and by establishing our final appellate court here we would ultimately be governing ourselves, realising true independence. Unfortunately for me, though, I am not there yet,” Shaw, who is also an educator and social and political commentator, told the
Observer.

“I need to be convinced from my own courtroom experience that our judges will dispense justice impartially, regardless of the outcome. But that does not mean we should not explore this position as a future option. We have some of the brightest jurists in the region so it is not necessarily a question of intellectual ability. But I find, especially in our criminal courts, a reluctance by some of our jurists to be impartial in its truest sense. My colleagues may not wish to admit this but I see and experience it quite too often, especially in the lower courts,” he said.

“We have some excellent judges, including our own chief justice. But justice must not only be done, it must be seen to be done — and some are afraid to go against popular opinions,” Shaw said.

“If we are going to have our own final court we may have to invite a few foreign judges, be it from within the Commonwealth or otherwise, who will come with a fresh eye, with no established connections or loyalty, to make up the tribunal. Albeit my reservations with the CCJ, to some degree, we might as well just accede to their appellate jurisdiction until we get our house in order,” he said.