December 28, 2007

Justice Wit on Constitutional Issues

Travel Ban
Source: The Daily Herald ( St Maarten)
Date of Publication: December 28, 2007

There are not many who question rulings of the High Court in The Hague, the highest judicial entity in the Dutch Kingdom that has no appeal possibility. Judge Bob Wit, a former member of the Joint Court of Justice of the Netherlands Antilles and Aruba, now on the Caribbean Court of Justice, chose to do so (see page 4 of Thursday’s paper - below ). That may not come as much of a surprise, because Wit is known as a rather outspoken member of the judiciary. His recent suggestion that it would be better to have a judicial entity check laws passed by Parliament to see if they comply with the constitution, the Kingdom Charter and international treaties when Curaçao and St. Maarten obtain country status caused quite a stir.

The judge’s reasoning is that the politicians can’t always be trusted to do it themselves, often because of local or other interests. At the current island level the Lt. Governor, as an impartial crown-appointed official, can prevent such situations at an early stage as a member of the Executive Council, but with country status the Governor is not part of the Council of Ministers or Parliament and can take corrective action only after the fact.

Not surprisingly, the most objections to the idea came from politicians, officials involved in the process of constitutional change and other legal experts, who argued that it would undermine democracy, because such matters should be left up to elected representatives rather than the court.

Both sides of the argument have some merit, but in his latest criticism of the High Court’s decision to disallow the Antillean travel ban and confiscation of passports of drug couriers, the honourable judge has a point. He should know, because he imposed the travel ban in June 2004 as alternative to deal with the growing number of drug couriers that the prison system simply couldn’t handle.

It’s also good to remember that it was the Netherlands which was most concerned about the drug transports and not only placed body scanners in the departure halls at the airports of the islands, but started the so-called “100 per cent controls” at the arrival hall of Schiphol Airport. These controls were experienced as unpleasant by regular travellers and, meanwhile, aspects of them have been declared unlawful by courts in the Netherlands as well.

What is likely to happen now is that to create cell space for drug couriers, other convicts will probably end up getting even more sentence time reduction, a practice many already consider unjust and no help in combating crime. Judge Wit says there is indeed jurisprudence on setting special conditions to stop convicts from repeating their crime that may also infringe on civil liberties, for the common good.

We agree wholeheartedly. For example, the practice of keeping track of convicted sex offenders and informing the communities they are in of their presence is well established in many countries. With all due respect, in appears the High Court should have given this matter more thought.
See also : Judges are better suited to supervise Politicians :
Judge Bob Wit weighs in on Constitutional issues
Former judge of the Common Court of Justice of the Netherlands Antilles and Aruba Bob Wit champions the idea of adopting a constitution that is truly the supreme law of the land and charging the judiciary with the duty of upholding that Constitution.

“Should our politicians be supervised by Dutch judges or Dutch politicians and bureaucrats? I would choose the judges, as they are at least bound by our laws, and for many more reasons,” Wit said in a lecture at University of the Netherlands Antilles on the occasion of the launching of the new Dutch Caribbean Human Rights Committee.

In his speech entitled “Taking ownership of human rights: towards a maturing Dutch Caribbean,” Wit who is a judge on the Caribbean Court of Justice in Trinidad and Tobago, said the restructuring of the Netherlands Antilles was all about the furthering of a fundamental right its inhabitants have: The right to self-determination, the very first right mentioned in the International Covenant on Civil and Political Rights, a human rights treaty to which the Netherlands Antilles is a party.

According to Wit, it has to be accepted by all politicians, current and future, that they must be closely monitored in the way the ply their trade. “This is not just a demand made by the Dutch Government, it has also more importantly been demanded by the people,” he said.

The Dutch constitutional model, he said, is not suited to the Dutch Caribbean. It may be a good model for the Netherlands, but it’s not for the small scale societies. “The Dutch parliamentary system has been effective in the Netherlands because, at least in the past, the Dutch parliamentarians had enough integrity and knowledge to carry that system.”

However, experience has taught the Antilles, Wit continued, “that this is not the case with us. The Dutch position that we as citizens of the Dutch Caribbean have to be protected against the possible excesses of our very own politicians is correct.”

The solution to that problem, according to Wit, is not to give Dutch politicians and bureaucrats the power to supervise our politicians and bureaucrats. “The solution lies with the citizens of these islands, who must have more tools to keep our politicians in check.”

These tools should be provided by the constitution, he said, by adopting a constitution that is truly the supreme law of the land and charging the judiciary with the duty to uphold that Constitution entirely, and not part of it, so as to offer the full protection of the law.

This is not to give more power to the judges or to establish judicial supremacy, but simply to give power to the people themselves, Wit said.

“After all, even under a constitution that is supreme and wholly reviewable, the initiative to take steps against the government of the day lies not in the hands of the judges, but in those of the citizens themselves.”

Examples Wit gave for guarantees that would not exist if the constitution were not wholly reviewable were that the General Audit Chamber and the Ombudsman, institutions designed to monitor and possibly correct the executive government, would be virtually meaningless without an additional provision demanding efficient output from these institutions and ensuring that government provided them with sufficient means, financial and otherwise, to discharge their duties in a proper and timely manner.

“But even if such provision is made, it would be irrelevant if it could not be enforced if and when the government failed to comply.”

Another example he gave was the requirement that government has to present a yearly balanced budget. “If you think that such a provision would be able to stop the government from messing up our public finances ever again, you are wrong.”

In the first place, Wit said, the fact that the budget would be prepared according to norms the islands do not yet know and that can be established with a simple majority in Parliament does not sound very reassuring.
“Secondly, even if the government would bluntly present an unbalanced budget, probably claiming force majeure, this would have no effect whatsoever, because when constitutional review is not possible, ordinances that violate the constitution cannot be struck down.”

If, however, the islands would embrace the constitution as their supreme law with full judicial review – as St. Maarten has done – they would require having a much closer look at their constitution before adopting it, according to Wit.

“It is then that we cannot sprinkle our constitution with fancy ideals and hollow phrases anymore.”

Furthermore, he said the new constitution should not only be a supreme document, it should also be a defining document enshrining the many human rights that exist in the world. In this context, Wit said the most fundamental human rights as laid down in the two important general human rights treaties, the International Covenant and the European Convention of Human Rights, should be included.

Another right that should be considered, according to Wit, is the prohibition of slavery and the slave trade in all their forms

December 23, 2007

Opposition Blocks CCJ Bill - Belize

UDP says nay to CCJ
Source: Belize News
Published: 21/12/2007

Attorney General, Honorable Francis Fonseca, called the UDP all kinds of less than flattering things for their past reluctance to follow the PUP lead on the CCJ (Caribbean Court of Justice) bill. Maybe the spleen was also for foreseen intransigence on the UDP’s part once again. But, we have to wonder how serious the government was about getting the CCJ bill, which would have made that body the final appellate court for Belize, passed into law in the House on Wednesday, December 19, 2007.

Ordinarily the ruling PUP would have needed only one swing vote from the Opposition’s side of the House, but with two of their own (Honorable Ainslie Leslie, and Honorable Marcial Mes) missing, they had to call on three Opposition members to break ranks to give the bill the needed three-quarters majority to make it law*.

Outside of ire directed the UDP’s way, the AG found time to give a brief history of the CCJ, beginning from a call in the Jamaica Gleaner way back at the turn of the last century. He described the CCJ as “a unique judicial institution”…”relevant to the region”…a body designed to be an arbiter of economic disputes in the Caribbean. With the Caribbean Single Market Economy (CSME) coming to the fore, the CCJ was necessary - “the ideal institution” to realize harmonious judicial interpretation.

And there was no fear that the judges at the CCJ would be biased because the court would realize its sustenance from a trust fund set up specifically for that purpose. Don’t be on the “wrong side of history again,” he warned the UDP. “Will Her Majesty’s Loyal Opposition continue to shamelessly hang on to the coattails of the Privy Council and continue to question the capacity of Caribbean Judges vis-à-vis their British counterparts?” he asked. “Abolish the Privy Council, bring on the Caribbean Court of Justice!” the AG concluded.

Shadow Minister of Education, Honorable Patrick Faber, the first to respond to the Attorney General, charged him with “attacking the Opposition before he can even find out what position we are going to take…” But the UDP was about to take the same position they had the last time the CCJ bill was brought to the House. Honorable P. Faber accused the government of “acting in bad faith,” of “trying to railroad the people,” and questioned why the Coast Guard Bill, a bill that the UDP had no problem in supporting, had been tied in to the CCJ Bill.

Honorable Michael Finnegan said that the government had no leg to “talk about law and order when your AG (former Attorney General, Richard Bradley)” had orchestrated the “removal of Chief Justice (Justice Manuel Sosa) from the Supreme Court.” He called the PUP a “hypocritical government” that “respect(ed) orders from the Supreme Court only when it suit(ed) them.”

Honorable Ralph Fonseca called the UDP’s statements “absolute nonsense.” “Only your leader (Honorable Dean Barrow) has no problem with the Privy Council,” he said, and warned that the UDP was “going to go down in history with severe black eyes,” if they rejected the CCJ Bill and the Coast Guard Bill. Honorable Jose Coye pleaded: “Let those of the same environment…be the final judges for us.”

And Prime Minister Musa accused the UDP of being an “Opposition that doesn’t really understand its identity.” The UDP were “against Central America,” he said, and “now they are showing they are against the Caribbean.” This decision to sign on to the CCJ was “born out of history,” and “the time has come to remove the umbilical cord…” he implored the House.

All 19 government representatives in the House voted aye. But the three-quarters majority needed to carry the CCJ bill failed once again as the UDP representatives stood against, all 8 of them voting nay.

P. S. In a telephone interview this afternoon, Honorable John Saldivar, the Area Representative for Cayo South, told us that to his knowledge a vote in the House for a constitutional change would have to have reflected a three-quarters majority of the present membership of the House, 29. Thus the PUP would have needed 3 UDPees to bolt on Wednesday to pass the CCJ bill into law.

December 06, 2007

Tenure of President of the CCJ

Bill to extend tenure of judges at CCJ laid in National Assembly
Wednesday, December 5th 2007
Source Stabroek News

Three protocols to modify the provisions for extending the tenure of judges of the Caribbean Court of Justice (CCJ) in special circumstances are among amendments to the Agreement Establishing the CCJ Bill 2007, laid in the National Assembly recently.

According to the last of the three protocols, this means that the tenure of the president may be extended, in special circumstances, beyond the date on which he attains the age of 75 or the date on which he completes seven years in office, whichever occurs first. And, in the case of other judges, not beyond the date on which he or she attains the age of 75 years.

The agreement establishing the CCJ provides that "a judge of the court shall hold office until he attains the age of seventy-two years."

Attorney General and Minister of Legal Affairs Doodnauth Singh presented the first protocol which contained provisions to ensure that sound arrangements for the administration and financial sustainability of the court are provided for; to clarify the circumstances governing withdrawal from the agreement; and to provide for the relationship between the original jurisdiction of the CCJ and the constitutional order in the respective jurisdiction.

In terms of modifying the provisions in respect of the tenure of the judges of the CCJ, the bill proposes that subject to Article IV, paragraph 6, the president shall be removed from office by the Heads of Government (HoGs) on the recommendation of the Commission of the CCJ, if the question of the removal of the president has been referred by the HoGs to a tribunal and the tribunal has advised the Regional Judicial and Legal Services Commission (RJ&LSC) that the president ought to be removed from office for inability or misbehaviour referred to in paragraph IV of the agreement.

Paragraph 6 as in the original agreement now states that "The President shall be appointed or removed by the qualified majority vote of three quarters of the Contracting Parties on the recommendation of the (RJ&LSC)."

Subject to Article IV, Paragraph 7, a judge other than the president shall be removed from office by the RJ&LSC if the question of the removal of the judge has been referred by the RJ&LSC to a tribunal and the tribunal has advised the commission that the judge ought to be removed from office for inability or misbehaviour referred to in paragraph 4.

Other provisions in the first protocol dealt with rules of the court governing original and appellate jurisdictions in relation to the president consulting not less than two and no more than five other judges of the court, selected by him, in establishing rules for the exercise of the original jurisdiction and, "for regulating the practice and procedures of the court in the exercise of the appellate jurisdiction conferred on the court and, in relation to appeals brought before the court, the practice and procedure of any court in respect of such appeals."

It also provides for financial arrangements such as the expenses of the court and the commission, the cost of the maintenance of the Seat of the Court and the remuneration and allowances and other payments referred to in the agreement establishing the CCJ, to be borne by the contracting parties in such proportions as may be agreed by the contracting parties and as set out in the annex to the Revised Agreement establishing the CCJ Trust Fund. But another provision ensures that the salaries and allowances payable to the president and other judges of the court and their other terms and conditions of service shall not be altered to their disadvantage during their tenure of office.

The bill also said that subject to the agreement and with the approval of the HoGs, the Commission shall determine the terms and conditions and other benefits of the president and other judges of the court.

The first protocol also provides for the withdrawal from the agreement, as well as the relationship between provisions on the original jurisdiction of the CCJ and the constitution of the states parties, signature to the protocol by the contracting parties, ratification of the protocol and entry into force.

The second protocol deals with amendments relating to the security of tenure of RJ&SC and the third with the agreement establishing the CCJ in relation to the tenure of judges of the court.

December 02, 2007

The Root of the Problem

A merry-go-round on republic
by Rickey Singh
Sunday, December 02, 2007
Source: Jamaica Observer

THERE is a curious political game being played out in a number of Caribbean Community states, including Jamaica. It ensures that while no political party or civil society group advocates retention of the monarchical system of governance, there remains an absurd reluctance for change-over to democratic republican status with a non-executive president as head of state.

Therefore, 45 years after British colonial rule started crumbling in this region, first in Jamaica - which likes to point to a robust quality of its sense of nationalism and patriotic spirit - political divisions help to keep a closed door to republican status with a Jamaican, not a British monarch, as head of state.

Barbados, which often proudly reminds us of having the second oldest parliamentary tradition in the Western Hemisphere, continues to flip-flop on the issue of a national referendum to determine whether it should usher in the republican model with a non-executive head of state.

Back on January 23, 2005, Prime Minister Owen Arthur had boldly announced that Barbados "will be a constitutional republic" by the end of that year. It simply didn't happen, but there have been expedient mutterings about proceeding through the route of a national referendum on the issue.

Having been conveniently pushed aside since then, the file was reopened with last week's announcement by Deputy Prime Minister Mia Mottley that a referendum on republic status would take place simultaneously with the forthcoming general election.

Three of dozen

Among the dozen independent English-speaking countries of our 15-member Caribbean Community, just a paltry three have parted company with a monarchical system that retains as symbolic head of state the still enduring Queen Elizabeth II.

The trio are: Guyana (as a parliamentary democracy with an executive president, like the USA); Trinidad and Tobago; and the Commonwealth of Dominica (both republics with the non-executive presidential model).

The Caricom dozen are among a lingering 16 of the 53 member states of the Commonwealth that still retain the British monarch as their head of state. It is to be wondered how many of their nationals regard this situation as a matter of national pride?

Two years ago, when the People's National Party (PNP) administration of then Prime Minister PJ Patterson was still in its fourth consecutive term, and the Barbados Labour Party (BLP) of Prime Minister Owen Arthur was continuing its third term, there were comparatively muted debates on constitutional changes in favour of republican status.

In Jamaica, debates were partly stimulated by constitutional amendments that had facilitated the historic third-term development when Patterson and his Cabinet colleagues took, for the first time, their oath of allegiance to Jamaica and the "Jamaican people", thereby breaking with the old colonial tradition of an oath of allegiance to the Queen.

That historic constitutional step, however, had also revealed the lack of a political appetite to move the process towards termination of the monarchical system, even if it meant linking the issue with a referendum to coincide with new national elections - as Barbados is now, once more, promising to do.

If fear over future access to the Privy Council as Jamaica's final appellate court was a problem in a referendum route, then Trinidad and Tobago had, as long ago as 1976, shown that the two did not have to be linked, as that twin-island state comfortably changed status, by consensus, as a democratic republic headed by a national as non-executive president.

Two years later, in 1978, Dominica did the same when it uniquely moved out of colonial status into independence as a parliamentary democracy with its first national as head of state and no longer a British monarch.

Playing 'footsy'

Both the PNP and the Jamaica Labour Party (now the governing party with Bruce Golding as prime minister), have been playing footsy on changing from monarchical to republican status.

Last week's announcement by Barbados' Mia Mottley - once again in a high-profile media spotlight - that arrangements would be made for a referendum on republic status to coincide with voting at the coming general election has highlighted the ongoing political merry-go-round on this issue.

A lot of watchers of Caribbean political developments must be baffled that in this seventh year of the first decade of the 21st century, perceived sophisticated multi-party parliamentary democracies in Caricom, such as Barbados and Jamaica, really need to have a referendum on whether to shake off the monarchical system of governance in favour of a parliamentary democracy with nationals as head of state.

They seem afraid, though it is not clear of what, particularly in Barbados, which has already taken the crucial decision to part company with the Privy Council in London. It is a position on which today's ruling JLP may want to delay for as long as possible.

In Barbados, going very softly on the republic issue could be a misjudgement of the mood of the Barbadian people by the two traditional contenders for state power - the Barbados Labour Party and the Democratic Labour Party.

After all, the last Constitutional Review Commission had reported back in 1998 that it received no written submissions or calls during public hearings against a constitutional change in favour of republican status.

The overall scenario, therefore, across the independent member states of Caricom, as we head towards the end of 2007, is that apart from three, all remain with a British monarch as their symbolic head of state.

Further, ALL except Barbados and Guyana are yet to show ANY real interest to sever ties with the Privy Council and access the Caribbean Court of Justice as their final appellate institution.