May 22, 2007

Role of CCJ

General News - Monday, February 26th 2007

Declaring that it would "be a tragedy of mammoth proportions if the CCJ was not allowed for whatever reasons to realise its full potential", the President of the court says the regional private sector needs to be more aware of the role of the CCJ.

Delivering the main address at the Rotary Club of Georgetown World Under-standing Dinner at Le Meridien Pegasus Hotel on Saturday evening, President of the Caribbean Court of Justice (CCJ), Justice Michael de la Bastide told his audience that if the CCJ was not allowed to realise its full potential the Caribbean would have "lost an opportunity which may not come again for several generations." To date only Guyana and Barbados have used the court since it was inaugurated on April 16, 2005.

He opined that it was still too early to be concerned over the fact that the CCJ has not yet been called upon to exercise its original jurisdiction (as it relates to the Caricom Single Market) since the experience of most newly established courts is that during the first few years of their existence, business tends to be very slow.

He was concerned that persons with a right of access to the court might not recognise the circumstances in which that right could be used to their advantage. While, he said it was not his purpose to stir up litigation he sensed that a greater awareness was needed by the private sectors of what the CCJ has to offer if it is to play its part in deepening regional integration and contributing to the success of the CSME.

Speaking on the role of the CCJ in the Caribbean Single Market and Economy (CSME), Justice de la Bastide said that when one considers the several rights and freedoms which the Caricom Revised Treaty seeks to establish in the creation of a single economic space; the general prohibition in Article 7 of the treaty against discrimination on the ground of nationality alone; and the provisions of the treaty designed to eradicate anti-competitive business conduct within the region, one might well conclude that the breach by a member state of virtually any provisions of the treaty is capable of qualifying as the subject of complaint in proceedings brought by an individual or company. He said he had a "nagging doubt" whether these options were fully appreciated by lawyers within Caricom, not to mention the clients whom they advise.
He said there were two other sources from which matters could go to the CCJ - by way of the referral of a question of interpretation or application of the Treaty by a national court, and by way of a request for an advisory opinion.

Referral to the CCJ of any question or issue arising in proceedings before the national courts which involve the interpretation or application of the treaty to the CCJ was an important part of the exclusivity of the regional court's jurisdiction. If the resolution of such an issue is necessary for the national court to deliver judgment, then that court "shall… refer the question to the Court, for determination before delivering judgment."
The underlying purpose of this provision, he said, was to ensure that there is uniform interpretation of the treaty throughout Caricom and to eliminate the risk of national courts giving different interpretations of the same provisions of the treaty.

"It is obviously crucial to investor confidence that there should be legal certainty with regard to the rules governing the CSME and this can only be achieved if there is a single, authoritative voice interpreting and applying the Treaty," he said.


Another feature of the court's jurisdiction is that it was final and there is no appeal of the court's decisions. However, power was given to the CCJ to revise its own judgments if some crucial fact was discovered after judgment was given.

While judgments of the CCJ are binding and enforceable, Justice de la Bastide said that unfortunately, all the necessary steps, including the enactment of legislation to give the CCJ teeth and to ensure that the CCJ judgments are enforced as if they were judgments of a local superior court, have not achieved their objectives.

He said Member States have simply reproduced "Article XXVI in the local act and so incorporate in the domestic law the obligation to pass the necessary legislation, without actually passing it. Hopefully, the parliamentary counsel concerned would recognize and take steps to correct this mistake."

In terms of limitations, he said that an important one was that the dispute must concern the interpretation or application of the treaty. He gave the example of fishing disputes between Member States which have nothing to do with the treaty but depend on the application of the International Law of the Sea. There have been several of these including one between Barbados and Trinidad which was taken to an international tribunal.

On the other hand there are provisions which give companies and individuals, access to the CCJ. He said that normally treaties only confer rights and impose obligations on states which adhere to them and not on companies or individuals. The core jurisdiction of the CCJ, however, is over disputes between Member States or between a Member State and Caricom.

In terms of a request for an advisory opinion from the CCJ, Justice de la Bastide said that "advisory opinions may be requested only by a Member State or by the Community." For Member States in dispute, he said that proceeding by way of a request for an advisory opinion may be an attractive option since it is less expensive and less adversarial than litigation.

Generally speaking, he said, "many people in the region harbour the unspoken fear that the CSME might like the ill-fated West Indies Federation, become another over-ambitious project that skidded off a paved road with good intentions." The CCJ itself could play a pivotal role in preventing this from happening by its judgments to transform the aspirations of the treaty into reality without sending shock waves that might threaten the fragile structure of the CSME.

He gave the example of dealing with inconsistencies between the domestic law and the treaty which would most likely arise.
Though time did not permit him to explore this subject in any depth, he noted that the European Court of Justice has held that the EEC (European Economic Com-mission) Treaty created its own legal order which was directly applicable both to member states and to their nationals, but this the court held, was the result of a partial transfer of sovereignty from the Member States to the Community."

He felt that for Guyana, the problem may have been made less intractable by the Caricom Act, 2006, which gives the Treaty the force of law and contains in Section 8(1) the provision which states that, "In the event of any inconsistency between the provisions of this Act and the operation of any other law other than the Constitution, the provisions of this Act shall prevail to the extent of the inconsistency."

Unfortunately, he said that a similar provision was not to be found in corresponding acts passed in some of the other member states such as Antigua and Barbuda, Barbados and Belize.
Conscious of the heavy responsibility which the court has to discharge, Justice de la Bastide said that he was by no means daunted by it and suggested that the people of Caricom share in the confidence and optimism he feels in facing the challenges ahead.

Giving a background to the establishment of the court including the appointment of a commission to appoint the judges and technical staff, its financing, and operationalising, he credited the Heads of Government for the provisions that provide the court with protection against political or any other form of interference.

He said that his confidence and optimism was also based on the past 18 months of working with the six judges who come from a variety of backgrounds bringing expertise and experience in different branches of the law.

On a lighter note, Justice de la Bastide said that personal contact was an important precursor to regional integration and it struck him that the matter of the free movement of people within Caricom, is a matter of seeking to recover lost ground after gaining independence.
Citing a number of examples, he said that he was old enough to remember a time in the pre-independence era when free movement of people in the region was a reality and not a goal.

He gave examples of contributions in the freedom of movement of people such as the composer of T&T national anthem, Pat Castagne, who was born in British Guiana to Guianese parents and taken to T&T as a small child; communication specialist, Kit Nascimento, his senior at St Mary's College in T&T making his mark in swimming there; then young tennis player Ian Mc Donald of T&T, who made his mark blossoming in Guyana as a novelist and poet; and Barbadian-born cricketer Sir Clyde Walcott, who played and coached cricket for Guyana while remaining an icon back in his native country.

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