February 18, 2009

Challenging judgment for CARICOM

OUR CARIBBEAN: Challenging judgment for CARICOM
Published on: 2/13/09.
Source :Nation News

THE RELEASE on Wednesday by the Caribbean Court of Justice (CCJ) of its 16-page judgment in the case brought against the Caribbean Community by Trinidad Cement Limited (TCL) holds serious implications for the future of the region's economic integration movement.

At the core of TCL's case is that a surprising level of ill-advised suspensions involving the Community's secretary-general and the Council for Trade and Economic Development (COTED) had breached the Common External Tariff (CET) guidelines to the disadvantage of the regional enterprise.

The seven judges of the CCJ – the court empowered with original or exclusive jurisdiction in resolving trade disputes arising from interpretation and implementation of the Revised CARICOM Treaty – has granted special leave to TCL to commence proceedings to challenge the legality of the suspensions authorised by COTED and the secretary general.

Having considered written submissions as well as oral observations, the court, comprising President Michael de la Bastide and Justices Rolston Nelson, Desiree Bernard, Adrian Saunders, David Hayton, Duke Pollard and Jacob Wit, decided TCL had satisfied the conditions to challenge the CET suspension decisions. In doing so, the CCJ rejected the contention of CARICOM that to admit a direct legal challenge by "a private party" to the decision and process of the Community would "greatly hinder the functioning of the Community and constrain the exercise of sovereignty by member states . . .".

Inaugurated on April 16, 2005, in Port-of-Spain, the CCJ is currently the final appeal court for just Barbados and Guyana. It is, however, empowered with original or exclusive jurisdiction for ALL countries that are party to the Revised CARICOM Treaty.

The rulings outlined in the just-released judgement could have the effect, according to one leading regional jurist, of either strengthening or seriously weakening CARICOM. Member states will be required to conform by law to honour the treaty provisions, or amend the relevant provisions.

The essence of TCL's case is that COTED and the Community's secretary-general had acted "irrationally, unreasonably and illegally" by their suspension of the CET to facilitate Jamaica, Suriname and six countries of the Organisation of Eastern Caribbean States to import cement from extra-regional sources in contravention of treaty provisions.

In their collective judgement, the justices noted that COTED and the secretary-general had available to them an "audit report" that confirmed "the supply capacity" of the TCL group to satisfy demands within the Community. In support of this contention, it was pointed out that TCL had consistently supplied between 79 and 93 per cent of the region's demand for cement between 2001 and 2008. The forecast was that TCL would be able to supply 100 per cent of the required demand in 2009 and 93 per cent in 2010.

The judges stated that "the rule of law brings with it legal certainty and protection of rights of states and individuals alike; but at the same time, of necessity it creates legal accountability. Even if such accountability imposes some constraint upon the exercise of sovereign rights of states, the very acceptance of such a constraint in a treaty is in itself an act of sovereignty."
We must now await CARICOM's next move.

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