January 26, 2009

Accept the Caribbean Court of Justice

A-G: Accept CCJ
Source: Nation News
Published on: 1/25/09.

ATTORNEY-GENERAL Freundel Stuart wants Caribbean Community (CARICOM) nations to hurry up and accept the Caribbean Court of Justice (CCJ) as the court of "last resort" on all matters.

Stuart said only Barbados and Guyana had accepted the CCJ as the final Court of Appeal instead of the Judicial Committee of Britain's Privy Council.

On the other hand, 12 CARICOM countries subscribe to the CCJ as the only body with responsibility to interpret and apply the provisions of the Treaty of Chaguaramas that set up CARICOM – and so settle trade and other disputes in the community.

Stuart, who is also Deputy Prime Minister, indicated that he wanted all CARICOM member countries to send a clear signal that they believe "justice can be delivered in the Caribbean at the same level and at the same quality" as through the Privy Council.

Stuart was at the time defending the Government against charges that it was "anti-integration" and dragging its feet on the CARICOM Single Market and Economy (CSME).

He dismissed the charges, saying: "There is no political party in the entire Caribbean and no country in the entire Caribbean that has given more to the regional integration movement than the Democratic labour Party as a party or than Barbados as a country."

Stuart said it was Barbados and Guyana who were "at the forefront of keeping the Caribbean Court of Justice alive".

While they were doing this, other countries were criticising Barbados but demonstrating that they believed their former colonial masters "are the best people to decide what is just and what is unjust for them".

He added: "They have no confidence in the people of the Caribbean. So I don't mind the talk . . . . When they demonstrate that they are committed to Caribbean people and to Caribbean values, when they demonstrate that they believe that justice can be delivered in the Caribbean at the same level and at the same quality as it was in the former mother country where the colonial masters reside, that is when most of them will qualify for my respect."

Stuart also questioned the readiness of some leaders for the CSME.

"If you are still at a stage where you do not trust your own people to dispense justice, to interpret your law, (to ensure) that justice can be done to your citizens, can you tell me that you are ready for a Caribbean Single Market and Economy?" he asked.

"You can't be ready. If you still believe that your former colonial masters have values higher than the people you want to lead, you cannot be serious about any Caribbean Single Market and Economy."

The CCJ was established in February 2001 and inaugurated on April 16, 2005.
Antigua and Barbuda, Barbados, Belize, Grenada, Guyana, Jamaica, St Kitts-Nevis, St Lucia, Suriname, and Trinidad and Tobago were the states which originally signed on to the agreement, followed by Dominica and St Vincent and the Grenadines two years later.

January 19, 2009

CCJ 4 Years Later

Fourth year since CCJ inaugurated and court still being grossly under utilised
Source: Caribbean Net News

Published on Monday, January 19, 2009
Print Version
By Oscar Ramjeet

It is interesting to read that CARICOM Secretary General, Edwin Carrington has called on regional leaders to accept the Caribbean Court of Justice (CCJ) as the final court.

Carrington made reference to the statement made by Trinidad and Tobago Attorney General, Brigid Annisette-George that only the Caribbean and Mauritius still retained the Privy Council as the final court, as well as the comments made by former St Lucia Prime Minister Kenny Anthony that "countries in the forefront of decolonisation process could now find undisguised comfort in retaining the Privy Council".

I wish to point out that Anthony was Head of Government in April 2005 when the Court was established and was in office until December 2006, for about 20 months and St Lucia had not joined the Court and still has not done so.

We have entered into another year -- the fourth year since the CCJ was inaugurated -- and no other country has joined Guyana and Barbados to accept the CCJ as the final court in the region. It is very disturbing and distressing that there is no indication that any other country will join in the near future.

What is even worrying is that the Jamaica Labour Party (JLP) administration 20 years ago was in the forefront of the establishment of the CCJ, and now that administration under a new Prime Minister, Bruce Golding, which is back in power after 15 years, is no longer interested.

Trinidad and Tobago was also advocating for the Court. In fact that is the reason why the Court is now headquartered in Port of Spain, and now the twin-island Republic has not taken any positive action to abolish appeals to the Privy Council.

But although the countries like Antigua and Barbuda, Bahamas, Belize, Grenada, Dominica, Jamaica, Trinidad and Tobago, St Kitts and Nevis, St Lucia, and St Vincent and the Grenadines have not taken steps to rid the Privy Council as the final court, they could still use the CCJ in its original jurisdiction to resolve disputes between Caribbean countries that are parties to the revised Treaty of Chaguaramas, as well as international law issues, but they are not even doing this.

Since the Court was established in April 2005, 45 months ago, only two CSME matters were filed.

In fact the decision in the first matter filed by a Trinidad company against Guyana was given on Thursday.

The CCJ has recently taken steps to launch a series of public education initiatives to enhance the knowledge of the Bar and Bench in the region and to invite business, labour and members of the public to be part of the exercise. Lectures were so far held in Jamaica and Antigua and Barbuda.

It is now worrying and opposition politicians in Trinidad and Tobago, including former Attorney General, Ramesh Lawrence Maharaj, are advocating that the Court be closed because of the high operational costs, not only because of the highly paid judges, but the maintenance of the highly technical and modern Court facilities as well as the administrative and support staff.

It seems that both the government as well as the opposition have to agree to abolish appeals to the Privy Council because of the constitutional changes, and that may well be one of the reasons, but perhaps I should point out that several governments have changed since the establishment of the CCJ, including St Lucia, Bahamas, Jamaica, Belize, Grenada, but the situation remains the same. Barbados and the British Virgin Islands also have new governments, but Barbados has already joined and the BVI is a British Overseas Territory and is not a signatory to the CCJ.

Since only two of the twelve countries -- Guyana and Barbados -- have accepted the CCJ as the final appellate court, the CCJ is grossly under utilised and this is very unfortunate since it gives them little scope to develop a Caribbean jurisprudence, which I have no doubt that they are eager to do.

There was some concern in the past that the CCJ was in favour of the death penalty as opposed to the London-based Privy Council, but a recent decision by the CCJ has dispelled the fear that it was a "hanging court" as contended in some quarters, since the regional Court has demonstrated that it will look at each case on its merits.

In any event, the Jamaican Parliament recently passed a motion by a wide majority to retain the death penalty, and St Kitts recently carried out an execution.

Dr Oswald Harding, former Attorney General of Jamaica, said that he was not in favour of the composition of the CCJ and expressed concern that no Jamaican has been named as a judge, although eight highly qualified persons applied for a position. He pointed out that Jamaica has the largest population in the English-speaking Caribbean, with a figure of 2.5 million. In a more humorous vein, he said that this was like selecting a West Indies cricket team without a Jamaican.

I have time and time again advocated that CARICOM Secretariat recruit a lobbyist to try to woo both the governments and opposition to take steps to rid appeals to the Privy Council, and they should do so as quickly as possible.

Carrington's statement is not enough; CARICOM should go further and take steps to approach governments as well as opposition parties to do so.

The Heads of Government have mandated the Ministers of Finance to provide funding for the recurrent expenses of the Court for the first five years of its operation. The question is -- what happens after April 16, 2010, the expiration of the five-year period?

January 16, 2009

CCJ Delivers Historic Judgment Under its Original Jurisdiction

TCL, subsidiary granted special leave to sue Guyana over cement tariff
Source: Stabroek News
Published: January 16, 2009 in News

In a historic first judgment delivered in its original jurisdiction, the Caribbean Court of Justice (CCJ) yesterday granted special leave to two cement companies to sue Guyana over what they said was the “unilateral” suspension of the Common External Tariff (CET) on cement.

The issue of whether Trinidad Cement Ltd (TCL) and TCL Guyana Incorporated (TGI) qualified as candidates for special leave to bring proceedings before the CCJ went to the core of the court’s jurisdiction, which in addition to being the highest appellate court in the region, also exercises an original jurisdiction by interpreting and applying the treaty which establishes the Caribbean Single Market and Economy (CSME).

TCL and TGI had accused the Guyana government of breaching the Revised Treaty of Chaguaramas by unilaterally suspending the CET on cement imported from countries outside of Caricom and sought to obtain special leave from the CCJ to sue Guyana. However, the two companies first had to satisfy certain conditions. They had to establish that they were “persons, natural or judicial, of a Contracting Party”.

Caricom member states who are contracting parties may bring proceedings before the CCJ, but for a person or company to bring proceedings before the court in its original jurisdiction, the party has to get permission from the CCJ, in addition to satisfying the required conditions.

On this issue, according to an executive summary of the judgment, the CCJ panel of judges ruled that the incorporation of a company in a Caricom state (which is a party to the treaty) is enough to qualify the company as a candidate for special leave to bring proceedings. It also ruled that an individual or a company may possibly approach the CCJ to seek relief against the state of which he is a national or any other Caricom state, which is a contracting party.

The CCJ panel of judges presiding in the case comprised, President of the court, Justice Michael De La Bastide and Justices Rolston Nelson, Duke Pollard, Adrian Saunders, Desiree Bernard, Jacob Wit and David Hayton.

In the judgment on whether a national of a state party to the treaty can bring an action, the court said it rejected a literal interpretation of the relevant article, Article 222 of the Treaty and took into consideration the policy and objectives of the Treaty as disclosed both in its preamble and its substantive provisions. In the judgment, the Court held that it is possible for an individual or a company to seek relief from the CCJ for breach of a Treaty obligation undertaken by a state whether or not that individual or company is a national of the offending state.

The CCJ also held that on the material facts placed before it the applicants had established at least an arguable case that other requirements for special leave had been satisfied, but emphasized that it was making no “definite finding on those issues which the ultimate success or failure of the proceedings might turn” since the ruling has now cleared the way for the substantive arguments in the case to be heard.

Regional submissions
The CCJ had invited all contracting parties and Caricom to make submissions on the issues before it, that is, whether under Article 222 of the Treaty of Chaguaramas, which pertains to the locus standi of private entities, it is sufficient for a company to be incorporated or registered under the domestic legislation of a contracting party.Secondly, the court also sought submissions on whether Article 222 accords one who is held to be a person, natural or juridical, of a contracting party the right to sue that contracting party.

The court said yesterday that it received submissions from Caricom, Barbados, Jamaica, Trinidad and Tobago and St. Vincent and the Grenadines. Notices for submissions were sent out last July to contracting countries except Guyana.

Originating application
TCL, a limited liability company incorporated under the laws of Trinidad and Tobago and registered as an external company under the laws of Guyana, and TGI, a limited liability company incorporated under the laws of Guyana in which TCL is the major shareholder sought special leave to file an originating application claiming compensation from/and or injunctive relief against the State of Guyana over the non-application of the CET on cement.

Guyana was represented by Attorney General Doodnauth Singh. While the State of Trinidad and Tobago was entitled to appear and was served with a copy of the proceedings it indicated via counsel at the case management conference preceding the hearing that it merely wished to observe the proceedings. The originating application was filed on April 3, 2008 by the Law Offices of Dr Claude Denbow, SC.

Alleged a breachTCL and TGI alleged a breach by Guyana of the provisions of Article 82 of the revised treaty under which Guyana is obliged to establish and maintain a Common External Tariff (CET) on cement imported into Guyana from outside of Caricom. The CET is incorporated into the laws of Guyana.

According to their submission, TCL and TGI alleged that Guyana is required to establish and maintain a CET in respect of all goods which do not qualify for community treatment in accordance with plans and schedules set out in the relevant determinations of Caricom’s Council for Trade and Economic Development (COTED); that the CET on cement is imposed at the rate of 15% on imports of cement from third states as reflected in the First Schedule of the Guyana Customs Act Chapter 82:01; that the imposition of the CET on imports of cement into Guyana extra-regionally is of great commercial benefit to them because of the protection afforded to their products; and that when the CET is imposed TCL and TGI enjoy a competitive advantage over imports which do not qualify for community treatment in accordance with the treaty.

Though they confined their allegations of not enjoying such a competitive advantage to the period from January 2007 and continuing even though the suspension of the CET commenced before January 2007, they said that at present they do not enjoy such a competitive advantage because of the decision of the Guyana government to suspend the implementation of the CET.

TCL and TGI alleged too that the revised treaty provides for COTED to authorise an alteration or suspension of the CET by a member state but the government sought no permission for this but Guyana was allowing the importation of cement from extra-regional sources without paying the CET as mandated by the relevant provisions of the revised treaty.

The two cement companies contended that they fulfilled all the relevant criteria for obtaining special leave “as Guyana has breached a provision of the revised treaty intended to enure to their benefit directly and that they are prejudiced by the breach.”As “nationals” of both Trinidad and Tobago (T&T) and Guyana, they alleged that the government of both countries declined or refused to espouse their claim and as such they sought special leave to seek redress from the CCJ.

On the other hand, Guyana admitted that the country suspended the implementation of the CET on cement and that COTED had not authorised any suspension in respect of the relevant period. The suspension was justified, he submitted, by the critical shortage of the commodity Guyana faced in view of its urgent developmental needs as a “disadvantaged community” in keeping with Article 1 of the revised treaty.

Attorney general Singh submitted that TCL and TGI were guilty of abusing their dominant position in the market and the court needed to protect consumers within Caricom; and that throughout Caricom there were complaints about the inability of TCL to supply the Caribbean market and in the period between 2001 – 2007 CET waivers were sought and obtained from COTED by Suriname, T&T, Jamaica and the member countries of the Organisation of Eastern Caribbean States (OECS).

He argued that the right to institute proceedings before the court was a right peculiarly vested in “State Parties” and that judicial review in municipal proceedings would have been the more appropriate course for TCL and TGI to take; and that the bringing of proceedings by one state against the other under the revised treaty may have serious political implications for the continuation and future of Caricom because the revised treaty intends that contracting parties operate as joint partners in Caricom and the CSME and only in the event of a breach of community obligations of the greatest magnitude was it foreseeable that such proceedings would be contemplated by one state against another.

He argued, too, that the applicants must prove that they are “nationals” in terms of the revised treaty, which requires eight different conditions to be met and that the applicants had not met them.

Lastly he argued that the obligation to implement the CET pursuant to Article 82 of the revised treaty does not yield any benefit to TCL and TGI “nor do they accrue any right.” Since no right or benefit accrues to the applicants, he argued that they are ineligible for special leave more so as no casual link was established between the applicants alleged loss and the failure on the part of Guyana to implement the CET.The CCJ has delivered over 20 judgments in its appellate jurisdiction.

January 08, 2009

DRF ( Jamaica) to provide services to CCJ and CARICOM

Dispute Resolution Foundation to Celebrate 15-Year Anniversary
KINGSTON (JIS):Thursday, January 08, 2009
Source: Jamaica Information Service - JIS
Several activities have been planned to mark the Dispute Resolution Foundation's (DRF) 15th anniversary this year, which has also been proclaimed National Year for Dispute Resolution.

The activities include the launch of parish exhibitions and a schools' competition; Alternative Dispute Resolution (ADR) workshops for sports and entertainment leaders; a one-day conference for tourism leaders; a gala awards function in July; a heroes of peace family fun day and concert in October, and a thanksgiving service in December. Several parish mediation, and peace and justice centre visits are also scheduled to take place.

Details of the events were unveiled during a DRF media briefing at the Courtleigh Hotel in Kingston on Wednesday (Jan. 7).

Board member of the DRF, John Bassie said this year, the DRF will also be placing emphasis on enhancing the delivery of court and commercial mediation services under Part 74 of the Supreme Court Civil Procedure Rules, which provides for most civil cases listed for trial in the High Court, to be automatically referred to mediation, once the first defence is filed. A mediator is either selected from a designated roster within 35 days, or one is appointed by the DRF, and a date, thereafter, set for the parties involved to meet. Attorneys and clients duly authorised to settle the matter, are required to attend and endeavour to reach a settlement.

Other activities scheduled for roll out, Mr. Bassie disclosed, are the publication of a seminal study on the attitudes, concepts, and prevalence of conflicts, and violence reduction initiatives in some 30 schools; and the institution of a number of community-based justice programmes and service, in partnership with the Ministry of Justice.

Regionally, Mr. Bassie said plans are also being made to consolidate work and partnerships established with fellow stakeholders in Belize, Guyana, Trinidad and Tobago, Barbados, Bahamas, and the Organisation of Eastern Caribbean States (OECS). He further advised that the Foundation will seek to establish formal relationships with the Caribbean Community (CARICOM), to provide services to the CARICOM Single Market and Economy (CSME), the Caribbean Court of Justice, as well as in matters pertaining to the Economic Partnership Agreement (EPA).

Noting security, violence, and governance; and business disputes arising from global and local economic developments, as the two main challenges which Jamaica will have to contend with during 2009, the DRF director said that in addressing these matters, there will be need to strengthen existing partnerships, and establish new ones with several key stakeholders. These include: the Ministry of Justice; the Caribbean chapter of the Chartered Institute of Arbitrators; private corporations; international development partners; communities; and young people.
Chairman of the DRF, Novar McDonald, who also addressed 0the briefing, noted several significant achievements, which the organisation has attained during its 15 years. These, he pointed out, include: the establishment of 16 service points across the island to deal with disputes arising in communities; implementation of dispute resolution initiatives in some 30 target schools in Kingston and St. Andrew, St. Catherine, and St. James; implementation of the school suspension programme, which aims to provide youngsters who have been suspended from school with the necessary support and channels through which they can discuss matters contributing to the disruption in their attending school, while ensuring that they are in good stead with their academics.

Other achievements, which the Chairman highlighted, include a 61 per cent success rate in the cases in which the DRF has mediated, and extensive training programmes undertaken in the wider Caribbean.

Counsellor, and Head of Development Cooperation at the Canadian Agency for International Development (CIDA), one of the DRF's key partners, Lorriane Belisle, noted that both organisations have had a long-standing relationship through the Foundation's work funded by CIDA. Some of these activities include: training of correctional officers and inmates at the Tower Street Correctional Centre, and South Camp Rehab Centre in Kingston, in dispute resolution in the 1990s; design and delivery of several initiatives under the Social Conflict and Legal Reform Project, inclusive of: the establishment of community Peace and Justice Centres in Trench Town, Kingston, and Flankers, Montego Bay, St. James; and development of a Restorative Justice Policy for Jamaica.

"CIDA is committed to supporting the Government of Jamaica's justice reform agenda, and values the DRF's role as a key partner in these reforms, based on its track record of high quality, appropriate, and innovative services," Mrs. Belisle said.

The DRF was also presented with a cheque for $200,000 by Manager of Corporate and Regulatory Affairs at Carreras Limited, Rhys Campbell, which will go towards enhancing the work and activities being undertaken at the Spanish Town Peace and Justice Centre.
On Tuesday (Jan. 6), Governor-General, His Excellency, the Most Hon. Professor Sir Kenneth Hall, declared 2009 as the National Year of Dispute Resolution, during a ceremony at King's House.