July 30, 2007

Tenure of CCJ Judge

Source: Stabroek News - Georgetown,Guyana
By Oscar Ramjeet
Sunday, July 29th 2007

The Regional Judicial and Legal Services Commission (RJLSC) has extended the tenure of Justice Duke Pollard to age 75 as a judge of the Caribbean Court of Justice (CCJ) after the RJLSC was given the mandate by way of a Protocol to the Agreement Establishing the CCJ, and signed by all the Participating Countries, for the extension.

It seems as if the Protocol was only given to extend the tenure of a particular judge and not all judges, according to an email received from Dr Michael Anthony Lilla, Court Protocol and Information Officer. This was in response to an email sent to him inquiring whether Justice Pollard was still a judge of the CCJ since he had already attained the age of 72, the retiring age of CCJ judges.

Dr Lilla had some time ago said he was not aware that steps were taken to extend the age to 75, but in a recent email he said the RJLSC has in fact extended Pollard's tenure to 75 on June 8.

The email from Dr. Lilla reads: "By a Protocol to the Agreement Establishing the Caribbean Court of Justice, recently signed by all the participating countries, the regional Judicial and Legal Services Commission was given the power to extend the tenure of a judge of the CCJ to age 75. The power to extend is exercisable if circumstances so require during the evolutionary phase of the court's existence, which is defined as the period ending when the full complement of nine judges has been appointed by the commission. The commission in exercise of this power has extended the tenure of Justice Pollard to age 75, and he, therefore, continues to be a judge of the court."

There is no information on the CCJ website to indicate that the tenure of Justice Pollard has been extended to 75. It was only revealed after the Court Protocol and Information Officer was contacted via email.

Justice Pollard never served as an advocate, or a judge, in his long legal career but is an experienced legal draftsman, and wrote extensively on international law and has participated in drafting many Caricom agreements. Several jurists ask why the regional governments went so far as to extend the age of a judge to 75 when the CCJ has had little work to do since its establishment a little more than two years ago.

According to the CCJ website, since the court was formally inaugurated two years and three months ago, on April 16, 2005 only eight substantive appeals were heard and an application for leave to appeal.

Pollard was sworn in as a CCJ judge on January 15, 2005 and he would have served two years and four months when he attained the age of 72.

When the CCJ was inaugurated, its President Michael de la Bastide and six other judges were appointed -- two short of the full complement of nine, but jurists in the region feel that since only two jurisdictions, Guyana and Barbados, now constitute the court there was no need to have as many as six judges and the president.

It seems that Jamaica and Trinidad and Tobago, as well as the OECS states will have to get the blessings of the opposition before there can be a constitutional amendment to remove the Privy Council as the final court, and this might take a very long time.

July 29, 2007

Point of Clarification ( Jamaica's Constitution Dilemma)

Source: Jamaica Gleaner
Sunday, July 29, 2007
By David Coore
I hope that Edward Seaga's former colleagues in the leadership of the Jamaica Labour Party (JLP) will take note of his article on constitutional reform appearing in The Sunday Gleaner (Public Affairs) of last week. ....

Point of clarification
There is just one point in Mr. Seaga's article that needs to be clarified.
He states that the Privy Council decision that nullified the legislation establishing the Caribbean Court of Justice (CCJ) as our final court of appeal is based on their finding that the CCJ "was wrongly formulated and structured".

This is not so. On the contrary, the Privy Council in clear terms expressly stated that they had no fault to find with the structure of the CCJ. Their decision was based entirely on their interpretation of the Jamaican Constitution and the appropriate procedure for amending it.

The Privy Council concluded that the procedure adopted to pass the necessary legislation, though adequate to abolish appeals to the Privy Council, itself, was not appropriate for its replacement by a new court.

The appropriate procedure, in their view, would have involved the parliamentary support of the Opposition party. It is important to understand the basis of the Privy Council decision because that decision did not involve any necessity to revise the treaty establishing the CCJ or to restructure the court itself.

Subject to this technical but important clarification, I do hope that those who have the responsibility of revising our constitution (and this involves both the party that governs and the party in opposition in the legislature) will heed Mr. Seaga's timely exhortation that they get on with the job of implementing those matters that have been widely discussed, agreed, and can now be implemented.

David H. Coore, O.J., Q.C., Ministry of Justice

July 28, 2007

Jamaica Gleaner Supports CCJ

Keeping politics out of justice reform
Source :Jamaica Gleaner
Jul 28, 2007

"This newspaper, as we expect to be the attitude of most fair-minded people, has confidence in the integrity of the Jamaican judiciary and the overall quality of jurisprudence available in the country and the wider English-speaking Caribbean. Which is why we would have no problem with Jamaica proceeding to membership of the Caribbean Court of Justice (CCJ) as its court of last resort, replacing the Privy Council in England."


July 27, 2007

Caribbean Rights Journal

Appeal Court head laments number of extrajudicial killings
Source: Jamaica Gleaner - Kingston, Jamaica
July 26, 2007

"I am and I have been for a considerable time appalled at the number of killings that are taking place, courtesy of the hands of persons who are paid by the state and who are using weapons provided by the state," Justice Panton said Monday at the launch of Caribbean Rights, a publication by the Independent Jamaica Council on Human Rights.....
Meanwhile, Dr. Lloyd Barnett, editor of Caribbean Rights, said it was important to have a Caribbean journal on human rights because the nations within the region are faced with similar challenges.
The journal includes articles relating to the Caribbean Court of Justice and its first important case, among other things.

July 24, 2007

Jamaica's Constitutional Dilemma

Source : Jamaica Gleaner - July 22, 2007
Edward Seaga

The Constitution of Jamaica is once again under discussion, this time thanks to Bruce Golding who raised what has proven to be a controversial issue: a fixed election date. Strangely, throughout all the wide-ranging discussions on constitutional reforms during the first half of the 1990s, a fixed date of elections was never considered to have sufficient support to be included among the discussions.

There are good reasons for and against the fixing of the date. I will cite only one reason against the fixed date, which I can substantiate by having played a front-line position personally in each of the two instances.

If the election date is fixed, a government could not be changed before the due date of election if it found itself in an unbearable position, or if the electorate considered it to be acting in an unbearable manner. It would have to wait out the full term, with dire consequences of a breakdown of civil order, or perhaps worse. This was the position of Norman Manley in 1961 and Michael Manley in 1980.

In 1961, Norman Manley had lost the Federal referendum. Having also lost the Federal election previously in 1958 when Bustamante’s team secured a decisive majority, the PNP would have had no moral authority to continue as a government to introduce Independence without a general election to decide which party should govern independent Jamaica. There would have been a serious breakdown in public order if a decision was not made at an early date. Jamaica would have become a bitterly divided country,which would be absolutely the wrong way to introduce Independence. Norman Manley understood this. He knew that an early general election would be necessary to enable the country to move forward without recrimination, retaliation or reprisal.

But the problem in 1961 was that the PNP term of government, which it won in July 1959, still had nearly three more years before election would be due. It was because the Constitution allowed flexibility in fixing the date of election that Norman Manley was able to call a general election in 1962, rather than be forced to wait until 1964, sparing the country the horrors of a bitterly divided nation as the birthright of Independence.

In 1980, Michael Manley found the country in a worse situation. His far-left rhetoric in promoting his radical brand of socialism, despite labelling it democratic socialism, a softer version, and the pounding which he was receiving on the domestic economy, led to the ultimate crisis in 1980. He had combed the socialist world for help and got US$50 million, sufficient for a short period only. The capitalist world closed the doors on official aid and bank financing without an IMF agreement. He rejected the IMF and its programme which was impossibly difficult to live with. He had no choice then, but in February, to set a date for early election by October 1980, more than one year before the election was due. The delay to October was to allow the newly established Electoral Advisory Committee to make the country ready for election.

With a fixed election date, Michael Manley would have had to wait an additional, unbearable 22 months with a severe shortfall of foreign exchange plunging the country into shortages, stoppages and outages on a continuous basis well beyond the endurance of an inconsolable public. He did the only thing he could do: call an early election.

But while much time and media attention are being given to the issue of a fixed election date, understandably because this election lacks issues, the bigger picture of constitutional reforms is being overlooked.

The programme of these reforms began in 1993. I took the most unusual step of seating myself on the Constitutional Reform Committee to help drive the programme of reform as I considered this to be one of the two missions I set for myself in the 1990s.

The Reports on Constitutional Reform proposed 29 amendments, or new provisions, to be included in the Constitution. The second and last report was tabled in 1995.

A substantial amount of time passed while the direction of the reform process was focused on two of the very important issues: the replacement of the Privy Council by the Caribbean Court of Justice (CCJ) as the final Court of Appeal for Jamaica, and the drafting of a charter of fundamental rights and freedoms.

Charter of rights issues

We know the outcome of the attempt to displace the Privy Council. As the leader of the Opposition at that time, I spearheaded the decision to seek a declaration by the Privy Council on the attempt by the Government of Jamaica to enact the Caribbean Court of Justice (CCJ) as Jamaica’s final Court of Appeal. The Privy Council found that the CCJ was wrongly formulated and structured and, as such, could not assume that ultimate role in our judicial system unless it was restructured and obtained the consent of the people by referendum.

The other issue was the Charter of Rights. After years of wrangling in parliamentary committees, the charter has still not been perfected and is now before the House of Representatives for final decision.

In an effort to move the reform agenda forward, David Coore and I, as the only two surviving members of the parliamentary committee which framed the Constitution of Jamaica, were asked to review the 29 proposed amendments to the Constitution to determine which were ready to go forward to be enacted into legislation. We met at Vale Royal and determined that 16 of the 29 issues could be prepared for legislation.

However, there was still no forward movement on these 16 proposals. As a consequence, another meeting was convened on January 23, 2006, comprising David Coore, representing the government; Dr. Lloyd Barnett, eminent constitutional attorney; Shirley Miller, adviser/consultant at the Ministry of Justice and myself representing the Opposition, at the request of the Leader of the Opposition, Bruce Golding.

The meeting was to take decisions on the outstanding issues and make recommendation to the parliamentary committee in order to move some of these items to legislation. This was done, but since then, 18 months ago, still no movement has occurred.

The lack of movement has created a logjam of constitutional amendments, which is a nightmare, not only because of the number of proposals to be legislated, but because several of them require entrenchment or deep entrenchment in the Constitution, procedures which are lengthy, cumbersome and problematic.

The entrenchment procedure requires a two-thirds majority approval in each House of Parliament.

Where deep entrenchment is required, the procedure is a two-thirds majority in each House and a referendum. If the required two-thirds majority is secured in both Houses, that is, both parties agree on the proposal, the referendum must be passed by at least 51 per cent of the vote. If the two-thirds majority is not secured, that is, the parties disagree, then the referendum must be passed by at least 66 per cent of the vote, a level of support not yet achieved by any party. Additionally, entrenchment and deep entrenchment require a minimum of six months to pass through Parliament. If a referendum is involved, the timetable could be as much as a further six months longer. The full timetable could be, therefore, at least a year, or more.

This is where the problem is spelled out. There are at least nine proposals requiring deep entrenchment and several for entrenchment. Some may be grouped, but the important and weighty amendments cannot be coupled in one referendum. Each will need an individual referendum to avoid confusing the electorate. Hence, years of legislative action will be required to hold several referenda, a prospect likely to create certain voter fatigue, to say nothing of massive expenditure.

I have selected only a few of the many weighty issues already agreed but waiting to be enacted. Additionally, there are those to be agreed in Parliament because the Joint Committee of the Houses of Parliament could not secure agreement. These include the death penalty and trial by jury.

Still worse, there is no decision on the structure of government to decide whether there is to be a presidential system to replace the present model of leadership by a prime minister, and if so, whether the president is to have executive or ceremonial powers.

Now tell me when all this will be completed? After more than a dozen years of discussion and decision, when will the nightmare end? This is where the focus of attention should be, not in adding new proposals to the problem.

■ Edward Seaga is a former Prime Minister. He is now a Distinguished Fellow at the University of the West Indies.

July 17, 2007

An Uneasy Integration

Sun Jul 15 2007
By Jeff Cumberbatch
Source: Barbados Advocate

ANOTHER CARICOM heads of government summit comes to a close, with the usual grand promises of increased co-operation, the hopeful expressions of confidence and the lengthy communiqué couched in the language of the mandarin. We shall see. However, it would be reckless to ignore the fact that at the popular level, where regional integration should be not only a felt but a lived reality, there is an almost palpable disconnect between the discourse of officialdom and that of an increasingly vocal number so far as this is concerned.

It can be sensed in the growing stridency of anti-Guyanese sentiment, especially on the populist electronic media. This is likely to vary at any given time from discomfort with their numbers to our unaccommodating lack of geographical space to an anecdotal innovation in local criminal techniques. We must never be allowed to forget that these are a people who have experienced the politics of racialism, a potential contaminating factor in a pristine Barbados where there is no racial, social or other division. It can be heard in the calls for restrictions on the property rights of those who are not Barbadian, however this protean classification may be defined. In an era of globalisation, such views seem at least peculiar; in an age of vaunted regional integration, they are positively bizarre.

They may reflect a Caribbean attitude, however. Globalisation and integration may be conceptually compelling realities at this time, but neither must be permitted to impede our sovereign agenda of business as usual, nor do some of us care in the least to take advantage of the opportunities offered by these phenomena -- "We are doing quite nicely as we are, thank you ever so much" . One group in a neighbouring island some years ago expressed horror at my suggestion that one logical extension of CSME was that our present nationalities would eventually become irrelevant. I suspect that this is not a minority reaction regionally.

So our governors pro tempore will cheerfully sign onto global and regional treaties which envision the opening of our markets and borders while popular sentiment insists that we keep them firmly shut. Ruritania is for Ruritanians first! So, alas, the Caribbean Court of Justice limps along to what seems the inevitable demise of its initially conceived format; work permits remain a regulatory sine qua non in a purported single economic space which guarantees the right of establishment and freedom of movement; and some continue vainly, in spite of everything, to imagine a single currency sometime hence. There is always the talk, but are our people prepared to walk?

This disconnect between official reality and popular discourse presents a fertile field for opposition politics in the member states. An appeal to nationalism is unlikely to fail and, in a context where one fears an end to assumed entitlements, that message becomes even more cogent. It is this which might explain the recent conditional promise by David Thompson, the Leader of the Opposition, that should the ink still be dry on any deal for the acquisition of Barbados Shipping & Trading when his party assumes office, he will put a stop to the transaction. Of course, for varying reasons, this statement would have resonated with a substantial segment of the population, many of whom would not have given even a passing thought to precisely how such might be achieved. Of course, there would be those who, for varying reasons, would oppose this position but, equally, would not have considered its im/possibility. So we are assured, once again, of an absence of reasoned discourse; local politics as usual.

While I do recognise and concede the obvious political value of Thompson's proposed strategy, it is not one to which I am immediately attracted. For one, it is not clear what criteria, or criterion even, would qualify BS&T for special protection relative to other local concerns. Second, given the nature of company ownership, a rescue of BS&T by State action might raise all sorts of political queries should others not be similarly assisted in future. Third, there might be an insalutary effect on Barbados' investment reputation unless it is made clear that this is an exceptional case. For me, it is a veritable Pandora's Box and, in the unforgettable dictum of one politician (not local), should we open it we don't know what Trojan horses are likely to jump out.

Precisely how Thompson would achieve his objective is not for me to advise; though those who are minded to inquire further should consider that no freedom is absolute and that the public/national interest once established is an overarching consideration. Moreover, his proposed policy recourse is not necessarily abhorrent in a liberal democracy. Legislation aimed at regulating takeover bids may be found in France ("economic patriotism", Switzerland, Japan and even in some US jurisdictions. This, in spite of the US constitutional mandate even in some US jurisdictions. This, in spite of the US constitutional mandate that " [n]o State shall pass any law impairing the Obligation of Contracts&" In Germany, in 1999, the then Chancellor came to the defence of Mannesman AG when it was under threat of a takeover from Vodafone Air Touch plc of Britain, arguing that the bid could "destroy the culture of the company".

The time has now come for all of us to decide what will be the nature of our integration, if we are to have one. I do not mean in respect of what our leaders say, or what the international documents stipulate. I mean the collective view of regional citizens, however this may be identified. The result might give cause for surprise to some.

July 10, 2007

Bahamas - Truly independent Nation?

A truly independent nation?
Source: Nassau Guardian - Bahamas

Thirty-four years ago, on a still night just after midnight on July 10, when the brilliant black, gold and aquamarine flag of The Bahamas was raised for the first time on Clifford Park, Sir Arthur Foulkes remembered that his heart rate went up a little and that he was filled with a tremendous amount of pride.

"I felt very happy," he recalled. "The only regret I had was that when the flag was pulled up it was still, so there was no flag flapping in the wind – the flag was just hanging around the mast."

It was a time that tens of thousands of Bahamians witnessed and can recall with great pride, but probably few have thought about the significance of the event to any great extent since. In that moment, The Bahamas took complete responsibility for itself, but what exactly have we gained since becoming independent just over three decades ago? And are we truly independent, given our retention of many colonial trappings and the Privy Council?......
But how much asserting can we do given the fact that we have maintained some fairly significant ties to Britain, such as the Privy Council – the country's final court of appeal – and many of the colonial trappings, which for some are a grim reminder of the history of colonialism.

"I have a problem with us swearing our allegiance to the Queen, with the Queen being our Head of State," says Strachan. "To me, we don't have the sovereignty that we suggest we have. Our Members of Parliament and Senators should be swearing their allegiance to the Bahamian people who elected them and whom they are supposed to serve, who pay them and to whom they are answerable.

"I think we have all of these trappings and if we look at it carefully, I don't think there's a moral leg to stand on to maintain these trappings. I just don't. The history of slavery and colonialism alone is enough."

For others, the so-called "trappings" are inconsequential. "Swearing our allegiance to the Queen is just a trapping, her heirs are her ministers, according to law, she has no power of her own," says Sir Arthur. "The British do it very well... the niceties of system, but she couldn't say today, no I cannot appoint you.'"

But if a post like the Governor General means nothing, why have one at all? "It was thought that at the time the connection with Britain ought to be maintained, and as a small country the idea of having a Royal Bahamas Police Force and the royal this and that would add to the country's stability and our attraction as a tourist destination," explains Sir Arthur.

On the more practical side, The Bahamas' decision to retain the Privy Council, which sits in London, as opposed to joining the regional Caribbean Court of Justice, continues to receive mixed reviews.

For well-known lawyer Damien Gomez, replacing the Privy Council, which is used by many countries in the English-speaking Commonwealth, is a non-issue.

"You don't give up something you have to get something less," he told The Nassau Guardian.
"We don't have the technical resources here, the expertise, to readily find a replacement [for the Privy Council] from our own Bar. We are having problems with our local courts. [Former Supreme Court justices are having trouble getting their pensions]. Most of the supreme courts are housed in an antiquated, obsolete building. Modern facilities are not available. For us to seriously speak about having a local final court of appeal we would have to address our own deficiencies, and no government since independence has taken the issue of resourcing the courts seriously."

Despite the expertise and perceived stability that a body like the Privy Council provides for countries like The Bahamas, some still feel that Bahamians should be able to decide what laws they wish to abide by.

"If it is argued for the sake of impartiality or protection against compromise in the judicial system because of our size, I think the next step should be a regional court," says Strachan.....

July 05, 2007


Regional Heads agree to implement CARICOM travel card
Published on Thursday, July 5, 2007
Source: Caribbean Net News

Heads of Government of the Caribbean Community (CARICOM) have agreed on the implementation of a CARICOM travel card that will be issued to every CARICOM national except those on the Community’s watch list.

Mia Mottley, Deputy Prime Minister of BarbadosThis agreement came out of negotiations at the ongoing 28th CARICOM Heads of Government Summit being held in Barbados. According to Barbados’ Deputy Prime Minister Mia Motley, an implementation plan for the document will be put together and submitted to the Heads at the next inter-sessional meeting to be held in September. She pointed out that the card will virtually maintain the ‘single domestic space’ and holders will not need a passport, during inter-community travel.

July 04, 2007

St. Lucia Committed to Regional Integration

St Lucia committed to regional integration says Acting PM
Published on Wednesday, July 4, 2007

By Gordon French
Caribbean Net News Guyana Correspondent

BRIDGETOWN, Barbados: Acting Prime Minister of Saint Lucia, Stephenson King says, his country’s commitment to the ideals of regionalism and to the deepening of the integration process of CARICOM will increase.

Acting Prime Minister of St Lucia Stephenson King speaking at the official Opening Ceremony of the Twenty-Eighth Meeting of the Conference of Heads of Government of the Caribbean Community (CARICOM) in Barbados on Sunday, King said the change of Government in Saint Lucia last December did not change the country’s “posture in relation to the Caribbean Community”.

King who is deputising for Sir John Compton, who is ailing, cautioned the Community not to be complacent in the face of the relatively trouble-free operation of the CARICOM Single Market since its inception in January 2006 and urged that careful monitoring of the implementation process be continued. He further noted that the Government of Saint. Lucia continued to sensitise the populace about the workings of the CARICOM Single Market and Econmy (CSME), and the benefits that were likely to be derived from its implementation.

“It is our belief that there is no such thing as too much information. Indeed, we have held the view that while some valuable work has been done in the Region to sensitise our people about this important matter, there is still a significant “information void” remaining to be filled,” King asserted.

The Saint Lucia acting Prime Minister expressed the hope that the Development Fund, as well as the provisions of the Special Regime for Less Developed Countries under Article 158 of the Revised Treaty of Chaguaramas, will be in operation quickly.

The Twenty-Eighth Meeting of the Conference of Heads of Government of the Caribbean Community is being convened under the umbrella theme of functional cooperation, with special emphasis on critical areas of human and social development, such as education and health.

July 02, 2007

Funding the CCJ

T&T puts $200m in CCJ Trust Fund
Darryl Heeralal dheeralal@trinidadexpress.com
Saturday, June 30th 2007
Source:Trinidad Express

THIS country has contributed close to a third of the US$100 million for the Caribbean Court of Justice Trust Fund.

Trinidad and Tobago loaned the Trust Fund US$29 million (TT$182.7 million) with the other 13 Caricom countries making up the rest.

Chairman of the board of trustees Dr Rollin Bertrand said yesterday that a schedule on how much money each country contributed was made out using a formula, which he said could be found on Caricom's website.

Bertrand was speaking at yesterday's signing of the agreement establishing the headquarters of the CCJ's Trust Fund between the Trinidad and Tobago Government and the Trust Fund.
The signing took place at the Ministry of Foreign Affairs in Port of Spain.

The money from the trust fund was sourced through the Caribbean Development Bank (CDB) which secured loans from the participating governments.

Bertrand said that several foreign organisations including the European Union had expressed interest in how the fund was set up and the mechanisms behind it.

He explained that several people had concerns over the funding of the CCJ and the possible political influence because of it but he said that these concerns have been allayed because funding was secured through the CDB and not directly from Caricom member States.

Monies from the fund is invested both internationally and regionally and the proceeds will be used to fund the CCJ.

Bertrand said he was not in a position to make public the regional investment portfolios as if any of the companies was brought to court "linkages could be made".

Foreign Affairs Minister Arnold Piggott said that the setting up of the fund was essential to the establishment of the CCJ.

This country is yet to pass legislation making the CCJ our final appellate court.