December 31, 2008

Caricom and Party Politics

Caricom and party politics '08
Rickey Singh
Wednesday, December 31st 2008

Source: Trinidad Express

ALTHOUGH they all remain officially committed to the creation of a Caricom Single Market and Economy (CSME), it became evident during 2008 that there are regional governments that are not singing from the same hymn sheet.

If the long overdue inauguration of the Caricom Development Fund was one of the few encouraging developments, the reality is that the list of unfinished business to move from a single market to a single economy remains quite significant.

The promise made at last July's Heads of Government Conference in Antigua for a special stakeholders consultation on the CSME was not kept and in the face of growing concerns about the likely negative consequences for our region from the international financial crisis, Caricom leaders have not considered it necessary for a special summit.

They seem to be quietly disposed to waiting until their inter-sessional meeting in Belize in March, if not February, to deal with this issue, along with a range of other matters, CSME-readiness among them.

At the sub-regional level, the Organisation of Eastern Caribbean States (OECS) may have underscored its own uneasiness, or disappointment, with the pace of progress for the CSME's inauguration in 2015 by the decision of its 48th summit in Montserrat to press ahead towards its Economic Union in 2009.

Trinidad and Tobago has been committed by Prime Minister Patrick Manning - without any consultation with the parliamentary Opposition or private sector and labour movement - to be part of this economic union, with some adjustments.

Its citizens have time to be better informed on how and why this union must take place ahead of an even more challenging process - a regional political union embracing T&T and the OECS without, hopefully provoking fractures with the rest of Caricom which is currently engaged in initiatives to widen and deepen integration and development with our Latin American neighbours.

The report from a group of experts, established under the chairmanship of Dr Vaughn Lewis, to examine and make recommendations for the OECS/T&T economic union with an eye also on political integration, should be useful for public information. But the OECS countries have already targeted 2009 for the realisation of their proposed economic union.

The initiatives for economic and political integration by the OECS and T&T are encouraging but there are problems ahead for lack of appropriate national consultations with national stakeholders.

It is also quite ironic that while enthusiasm is being whipped up for economic union, the OECS, as well as T&T, are yet to unveil any clear action plan to access the Caribbean Court of Justice (CCJ) as their final appellate institution and put an end to the old colonial link with the Privy Council in London.

The OECS countries will also be aware of the reservations held by the Bruce Golding administration in Jamaica about the CCJ, as any firm commitment to a new and empowered administrative structure for the Caricom Secretariat that may conflict with its own notions of sovereignty.

The Antigua and Barbuda government of Baldwin Spencer is heading towards new general election while the St Lucia Labour Party of Kenny Anthony is becoming increasingly militant in pressurising the lacklustre administration of Stephenson King, clearly with an early national poll in mind.

Across in Guyana, party politics took a bad turn for the main opposition People's National Congress Reform (PNCR), with the explosion of internal differences that by year end had deteriorated into open calls for the resignation of its leader Robert Corbin.

Corbin was quite dismissive of such calls and has vowed to remain at the helm as he continues to keep hope alive for a return of his party to the power lost in 1992 after some 28 years in power.
That is an optimism not widely shared, even by those outside of the PNCR's fold with their own disenchantment and disagreements with the governing People's Progressive Party (PPP) that has its own internal leadership tensions.

In T&T, for all the reported unpopularity of Prime Minister Manning repeated failures by the Opposition parties to effect a unity platform feed cynicism about threats to continued governance by the PNM.

This is going to be quite a high profile year for Manning in the full glare of media publicity as he hosts, first the Commonwealth Summit in April and then in November the Summit of the Americas with the new US President Barack Obama and new Secretary of State Hillary Clinton as superstar participants. More on this later.

December 27, 2008

Caribbean Court of Justice- Breaking New Ground

Caribbean Court of Justice - Breaking New Ground
By Deidre S. Powell
Paper Presented in Berlin, Germany - The Law and Society Association 2007

The Caribbean Court of Justice is the newest and most unconventional international judicial institution in the world to date. Although its membership is confined to fourteen of the smallest islands of the world, it is the first to have both an appellate jurisdiction in relation to civil and criminal law of member states and an original jurisdiction in relation to international law.
Another distinctive feature of the Court is the process for the selection of its judges. An independent body known as the Regional Judicial and Legal Services Commission, which is independent of the political system of the Member States, appoints the judges of the Court. This is the first time that a judicial appointment commission has been used in the international courts.
Such a radical deviation from the international custom has its roots in the general scepticism of the people of the region regarding the potential effectiveness of the court and the need to ensure that the court is not subjected to the manipulation of the political powers that be.
This paper will consequently highlight the unique nature of the court, with a brief look at how it differs from the established European Court of Justice. The aim is to provide an overview of the similarities and differences between the two judicial systems.

December 24, 2008

The Caribbean Court of Justice and the Growing Influence of Unincorporated Treaties in Domestic Law

Reconsidering Dualism: The Caribbean Court of Justice and the Growing Influence of Unincorporated Treaties in Domestic Law
Author: Aaron, David M.1
Source: The Law and Practice of International Courts and Tribunals, Volume 6, Number 2, 2007 , pp. 233-268(36)
Publisher: Martinus Nijhoff Publishers, an imprint of Brill
In dualist states, international and domestic legal commitments have traditionally existed on entirely separate planes. Despite the evolution of international legal norms since the end of the Second World War, courts in dualist states have continually opposed using international law to interpret domestic legislation. The author suggests that the traditional dualist view, in which international treaty commitments have no domestic effect until incorporated through the dualist state's domestic legislative process, is weakening.

This paper begins with an overview of the monist-dualist distinction in international law and explains dualism's approach to the relationship between domestic and international law. The next section of the paper explores traditional dualist jurisprudence on the role of unincorporated treaties in domestic law and explains why judges have clung to a rigid application of dualism. The weakening of this inflexible approach is then examined, culminating in an analysis of the pivotal recent judgment of the Caribbean Court of Justice in Boyce. This paper concludes that dualism is waning, particularly in cases where domestic law falls short of international human rights standards, as courts demonstrate an increased willingness to use unincorporated treaties as interpretive aids when construing and applying domestic law.
Document Type: Research article
DOI: 10.1163/156918507X217594
Affiliations: 1:
London School of Economics; University of Western Ontario

December 18, 2008

Trinidad AG defends CCJ

Trinidad AG defends CCJ
Thursday December 18 2008
Source: Antigua Sun

PORT-OF-SPAIN, Trinidad (CMC) – Attorney-General Bridgid Annisette-George yesterday pledged support for the Trinidad-based Caribbean Court of Justice (CCJ) after one of her predecessors called for the suspension of the regional court that is intended to replace the London-based Privy Council.

Only Barbados and Guyana are members of the appellate jurisdiction of the CCJ that was established in 2001 and inaugurated four years later to replace the Privy Council as the region’s final court. However, most of the Caribbean Community (Caricom) countries are signatories to the original jurisdiction of the court.

Annisette-George has described as “disingenuous” statements made over the weekend by former attorney-general Ramesh Lawrence Maharaj that the CCJ “has now become a non-starter as most countries in the region cannot get their population to support the abolition of the Privy Council.”

He said regional governments were spending millions of dollars on the CCJ while their citizens “are starving and have poverty problems.”

“So the whole question arises about the relevance of the CCJ,” Maharaj said, adding that in the prevailing economic situation “some effort should be made to suspend its operations and reduce its staff.”

Annisette-George said the CCJ signatories should “corral their populations to support the implementation of the relevant legislation to abolish appeals to the Privy Council,” adding “there “are about 46 matters currently filed before the CCJ–43 are appeals from Guyana and Barbados.”

She recalled that Maharaj was part of the Trinidad & Tobago government that signed the agreement establishing the CCJ, adding that those politicians had “for no justifiable reason become the proverbial turncoats.”

She said the Caribbean and Mauritius were the only remaining bastions of the British court system for appeals, questioning: “Are we going to await eviction from the Privy Council before fully accepting the CCJ?”

December 16, 2008

Call for supension of the CCJ

Former Trinidad attorney general wants Caribbean court to be suspended
Published on Tuesday, December 16, 2008
Source: Caribbean Net News

By Oscar Ramjeet -Caribbean Net News Special Correspondent

Former attorney general of Trinidad and Tobago, Ramesh Lawrence Maharaj, a Senior Counsel, who is also the opposition Chief Whip, is calling for the suspension of the Caribbean Court of Justice (CCJ).
The Trinidad Guardian reported that Maharaj said in an interview, "The Caribbean Court of Justice has now become a non-starter as most countries in the region cannot get their population to support the abolition of the Privy Council.”
He said that the CCJ was costing regional governments millions of dollars, while citizens of these countries "are starving and have poverty problems”. “So the whole question arises about the relevance of the CCJ," Maharaj added.
The experienced lawyer/politician suggested that, against that background and in the wake of prevailing economic conditions, "some effort should be made to suspend its operations and reduce its staff". He added that regional governments were discriminating against their citizens by treating the CCJ in such a favourable manner.
The CCJ, which has an original and appellate jurisdiction, was inaugurated in 2005 and was supposed to replace the Judicial Committee of the Privy Council in England as the region's final court of appeal. Although 12 countries agreed to the establishment, only two countries, Guyana and Barbados, have formally adopted the CCJ as their final court.

December 14, 2008

CSME & CCJ Doubts

CSME - more doubts than progress - Now Barbados 'consultation' postponed
Source: Jamaica Observer
Sunday, December 14, 2008

AS 2008 draws to a close, it is becoming increasingly evident that there is a serious decline in momentum for the transformation of Caricom into a single market and economy (CSME) by 2015.

When I wrote in the Observer two weeks ago that the CSME appears to have been placed on "a slow march", I was not aware that a stakeholders' consultation on the CSME, scheduled to be hosted this month by the Barbados Government, would not be taking place.

Late last week the Caricom Secretariat and the Barbados-based CSME Unit confirmed that the consultation was off and would now take place on a date to be determined.

Six months ago, at their 29th Caricom Summit, our Community Heads of Government had accepted an offer by Barbados' Prime Minister David Thompson, who has lead responsibility for CSME-readiness arrangements, to host "a wide-ranging consultation in the second half of 2008".
That has not happened. Instead what has been surfacing is more reservations about the CSME, in particular negative attitudes towards intra-regional free movement of Community nationals, which is one of the key segments of the proposed single economy project.

As it is with free movement of even skilled nationals, so also is the case in relation to, for example, justice and governance (including human rights), transportation, tourism and security - lack of an information flow from Heads of Government assigned specific responsibilities in Caricom's quasi-cabinet structure.

There has now been another official signal from the Caricom Secretariat that the member governments intend to give legal status to the 'Charter of Civil Society' in 2009.

The sad reality is that there have been endless promises to do so since the Charter was officially declared with much fanfare 11 years ago, in 1997.

As in the outstanding case for widening membership access to the Caribbean Court of Justice (CCJ), it is to be hoped that the Charter gets the official attention it deserves to become a functional instrument for improved governance in the 15-member Community.

Currently, however, greater concerns relate to the sense of apathy over moving forward with CSME arrangements. Now that the scheduled "stakeholders' consultation" has been postponed, possibly until the first quarter of 2009, an official explanation seems appropriate.

The latest of three former prime ministers to openly lament, within the past month, the "poor" response to advance arrangements for the CSME, is Dr Kenny Anthony of St Lucia.

He has called for urgent and concerted action by all governments of the Community to make a reality of this flagship project, now much more needed, he said, in view of the current global economic crisis.

As previously noted, the former prime ministers of Barbados (Owen Arthur) and Jamaica (PJ Patterson) were equally firm in expressing their own disappointment over the evident lack of serious and sustained action to complete the CSME-readiness arrangements.

A mood of cynicism and disenchantment over lack of action on the "CSME front" could be detected in a number of Caricom states, but it is more pronounced, for different reasons, in Jamaica and Barbados.

Lingering trio

Today there are still Caricom governments that confuse, expediently perhaps, a policy of managed migration - a right that belongs to every Community partner - with their moral and legal obligation to pursue and implement the programme for free movement of skilled nationals, consistent with CSME objectives, as outlined in the Revised Caricom Treaty.

Further, there are three Community countries yet to either begin the implementation process, or signal readiness to confirm with even the unanimous decision by Heads of Government in July 2007 to ensure the upholding by immigration authorities of an automatic right to six-month stay for Caricom nationals on arrival - for whatever reasons - once not linked to any form of employment.

The trio yet to implement that decision are Barbados, St.Kitts and Nevis, and Antigua and Barbuda. The governments in Basseterre and St John's are currently engaged in electioneering politics, and CSME implementation will simply be kept on the back-burner.In Barbados, there are now more expressions of reservation and doubt about the CSME than that of optimism for the value in Caricom pushing ahead towards a seamless regional economy.

Since the hopes raised at the joint seminar in Trinidad and Tobago on plans for the CSME, and the subsequent relevant decisions of the Caricom Summit of 2007 in Barbados, changes in governments in some countries, including Jamaica, Barbados and Belize, are reported to have influenced moves for a review of the implementation programme for even skilled Community nationals "with a view to determining reaffirmation or modification".

Last month the Community's Council for Trade and Economic Development (COTED) decided to establish a "working group" to review and make recommendations for the procedures across the various categories of skilled Caricom nationals eligible for free intra-regional movement.

No explanations were offered as to why this "review" of originally approved "procedures" has become necessary.

In all of this there remains a deafening silence from the prime minister of Dominica, Roosevelt Skerritt, who shoulders lead responsibility for "labour" with a specific focus on free movement of nationals. He is proving quite artful in evading media inquiries about the functioning of his portfolio on free movement in Caricom.

Perhaps there is need for an independent audit to indicate the overall readiness arrangements status by Caricom governments to help make CSME inauguration a reality in 2015.

A relevant view is, if those with lead responsibilities for specific Caricom sectors/programmes - CSME or otherwise - are not sufficiently motivated or interested, they can hardly be expected to provide vigorous leadership to attain desired objectives.

December 04, 2008

President of the Jamaican Court of Appeal Supports CCJ

High Court judge calls for CCJ
Posted: 2008-12-03

President of the Court of Appeal, Justice Seymour Panton, has called for the abolition of appeals to the United Kingdom Privy Council. He says it is baffling that Jamaica continues to have its final appellate court outside of its jurisdiction.
He made the comment yesterday while responding to glowing tributes paid to him at a dinner held at the Jamaica Pegasus hotel to celebrate his 40th year at the Bar.
He was called to the Bar at Lincoln's Inn, London, England, in 1968.
Justice Panton who is in favour of the Caribbean Court of Justice (CCJ) pointed out that Jamaica was paying 18 per cent of the budget for that court.
He says no one can question the competence of the judges of the CCJ. He also says that Lord Hoffman who sits on some of Jamaica’s appeals in the UK Privy Council has said recently that he could not understand why the island’s final appeal court was in England when it has competent jurists.
According to Justice Panton, Jamaica should not be looking to Europe as its final appellate court, but to the Caribbean. He also spoke out against the high crime rate in Jamaica saying he did not think many of the crimes are committed because of poverty. He points to the ability of some criminals to access expensive weapons with which to carry out their crimes.

December 03, 2008

Death Penalty and CCJ - Dead issue?

The death penalty debate
Source: Jamaica Observer
Wednesday, December 03, 2008

The much-heralded "conscience vote" has now been held with the result of retaining the death penalty as enshrined in the constitution.

There have been proposals from the opposition party and others for a change in the method of execution to lethal injection, as a more humane method for terminating life. The US Federal Supreme Court recently ruled that lethal injection was not cruel and inhumane, and its use should continue in the administration of the death penalty.

The method of execution was not generally questioned by observers because it is solely extinguishing the life of a convicted murderer that provides justice for the victims and their families. The finality of execution which is irreversible was complained of, but failed to acknowledge that the same absolute finality applies also to the victims.

The views in the media make it abundantly clear that after the extreme and exaggerated nuances are overlooked, the driving force behind the death penalty is to provide justice for those who were brutally killed and for their families. The death penalty provides equity through the application of the principles of justice by upholding the law of the land.

Capital punishment has been described as "cruel and inhumane". Consider a recent case when three children were savagely murdered in one evening. The last victim, a young girl, pleaded with her attacker not to kill her. His response was to disembowel her! That illustrates by any standard, "cruel and inhumane" treatment in the extreme, deserving the full punishment available under the law.
Do we wait for the advent of Republican status before dispensing with the UK Privy Council as the final arbiter, or would Jamaica accept the CCJ as the final court of appeal?

Universally there was a large measure of agreement in the media, concerning three areas in the criminal justice system requiring remedial action before executions should be resumed. First, reform of the JCF by eradicating corruption. ACP Justine Felice in charge of this task has had considerable success by concluding approximately 50 cases since January. Merging the JCF with the JDF has not found favour for many varied reasons, but what still needs to be considered is possibly transforming the JCF into a paramilitary organisation to better address the terrorist activities of our times.

Also related to the reform of the police force is the necessity for a state-of-the-art forensic laboratory and passing the crime bills before Parliament into law without further delay.

The provision of a forensic laboratory would surely find traction with major donors, and should be pursued with the utmost despatch. Likewise, the creation of Special Weapons, Arms and Tactics (SWAT) Teams to operate in the cities requiring urban close-quarter tactics to provide such skills as house clearing and hostage resolution situations. This would reduce civilian casualties who become victims labelled "collateral damage" because of indiscriminate shooting during engagements with the security forces.

The second major concern expressed was the possibility of jury error, by convicting an innocent man. Much has been said about the release of convicted men on death row in the US, through the use of DNA evidence which proved their innocence. Conversely, the same evidential DNA technique that proved the innocence of the men in the US can be applied proactively in Jamaica, to confirm the identity of the accused related to the crime, in the event of a guilty verdict.

The possibility of jury error resulting in the conviction of an innocent man would therefore be considerably reduced. This technology could be sought from the US authorities, if it is not yet available in Jamaica. It should be mentioned that only relatively few murder cases now warrant capital punishment, which is no longer mandatory for certain homicides such as crimes of passion. This has resulted from a UK Privy Council directive.

The third area of concern voiced in the media was the oft-heard cry: "Fix the justice system!" With the explosive increase in the homicide rate, a separate criminal court could sit when needed, exclusively to deal with cases involving capital murder. It would be exemplary if our Court of Appeal could be similarly equipped to the standard of the Caribbean Court of Appeal in Trinidad, which exhibits the latest equipment and technology that has introduced a superior level of case management in the work of the judiciary. Again the government should prevail on donors for funding as part of capacity-building development assistance in the free trade area negotiations being conducted with our major trading partners. The Caribbean Development Bank could also be a possible alternative source of finance.

Realistically, it is unlikely that any executions can take place for the next 24 months or so because of legal "red tape" which has to be severed locally and internationally before capital punishment can be resumed. Jamaica is signatory to a number of human rights agreements that have to be carefully navigated to avoid any possibility of a breach. There has to be a decision on future referrals to the UK Privy Council. Do we wait for the advent of Republican status before dispensing with the UK Privy Council as the final arbiter, or would Jamaica accept the Caribbean Court of Justice (CCJ) as the final court of appeal? This second course of action is strongly supported by the judiciary as seen at the CCJ seminar held in Kingston during October.

Alternatively like Barbados, a constitutional amendment requiring a two-thirds majority in Parliament could be sought. The eight convicts on death row are likely to have their sentences commuted to life in prison in compliance with the Pratt and Morgan precedent as they have probably been incarcerated for five years or more.

We take this opportunity to congratulate Dr Carolyn Gomes of Jamaicans for Justice, a dedicated and sincere human rights advocate, on being bestowed with the United Nations Human Rights Award for 2008 - a high honour for both herself and Jamaica.