May 31, 2009

Citizenship and the Constitution

Published: Sunday | May 31, 2009

Source: Jamaica Gleaner - Jamaica
By: Robert Buddan, Contributor

At its most essential, a Constitution sets out the just and right relations between the State and the citizen. One relationship involves the basis upon which citizens can represent themselves through the state. This is about elections  The other relationship is about how the state represents citizens. This is about sovereignty. The point at which the two meet is where the citizen can represent him or herself in a way that does not undermine the sovereignty of the state.

The matter of dual citizenship  has to be seen in this context - a context of where rights and justice begin and/or end. Rights and justice cannot only be topical when it is convenient to the State and citizen. Nor can constitutional reform be reduced only to dual citizenship because it is politically expedient for a government and its supporters to do so. Yet, this is often what politics is about and when things are done for convenience and expedience, the problem at hand becomes politicised. The real problem then becomes lost in a confusion of convenient arguments and expedient actions.

Higher authority

Take the court rulings for by-elections in West Portland and North East St Catherine. A government has a thin majority by the certification of the Electoral Office. But that thin margin has still to be certified by the constitution, which is a higher authority than the Electoral Office. Election petitions have sought the decision of the courts. The courts have ruled in two cases that the persons elected could not be certified as being legitimately elected because they held dual citizenship. So, in this sense, the elections of September 2007 are still being certified. In the meantime, a slate of candidates certified by the Electoral Office is allowed to govern.

The Government and its spokespersons have made three expedient arguments. One is that it is an absurdity for a Jamaican's right to be elected (though he has dual citizenship) to be less than the right of a Commonwealth citizen who has spent a year in Jamaica. The second is that the Opposition is seeking to topple the Government through the courts. The third is that holding these by-elections is a distraction, is unnecessary, and is a waste of money. Prime Minister Bruce Golding made the first two arguments and Shahine Robinson, who is suspected of holding her seat illegitimately on the same grounds of dual citizenship and dual allegiance, made the last.

Political compromise

The solution offered by the Government is a political compromise, which is what convenience and expediency typically come down to. The compromise is that both sides in Parliament should agree to change the inconvenient clause(s) in the constitution and avoid a possible general election, which the country supposedly does not want at this time - an argument of political expediency. Political compromises are not in themselves bad. But they should be made to save, not substitute fundamental principles, those very principles that often get lost and forgotten in the pursuit of convenience and expediency.

The Opposition's response to the issue rests on three points. It has maintained that these by-elections were important to satisfy constitutional requirements for parliamentary representation; that its challenges in the court seek to uphold the constitution as it stands and that those challenges have been vindicated by the court's decisions so far; and that changes of the relevant clauses in the constitution required a referendum and a decision by the people, and could not be achieved by a compromise of convenience between the members of Parliament. Ultimately, it is saying that the fundamental issue at stake is the constitution, not the government majority. Section 39 is after all, entrenched. For purposes of expediency this might be regarded as absurd. For purposes of democracy, the constitutional fathers might be regarded as wise. It involves the grounds on which a citizen is qualified to represent the sovereign state.

Resolving the problem

This question has come down in practical terms to the problem of dual citizenship and how the country should treat it. Parliament is an important oversight body of the constitution. But sometimes, by an oversight, Parliament itself fails to see and correct some of the problems of the constitution. For 35 years since the Michael Manley government declared its intention to pursue comprehensive reform of the Jamaican Constitution the various joint committees and commissions on constitutional and electoral reform have failed to anticipate this problem or they saw nothing wrong with the section on dual citizenship. This is why it appears expedient now for the matter to be raised the way it has been since September 2007. The press and citizens, especially those who have dual citizenship, have also failed to raise it in the context of constitutional reform.

Hot debates

The hot debates over the constitution have been about whether we should retain the British monarch as head of state or have one of our own; deepen entrenchment over the fundamental rights of citizens and limit the state's powers to suspend those rights; adopt a more proportional arrangement for electing governments rather than keeping the 'winner-takes-all' electoral system; and have the Caribbean Court of Justice as our court of final appeal rather than using the British Privy Council for that purpose.

These are all vital matters. But as more and more Jamaicans came to live overseas and as we called upon more of them to serve the country, we (and they) somehow failed to ask the logical follow-up: Can they serve in Parliament even if they have dual citizenship and do Jamaican citizens, dual or otherwise, have the same right to serve as Commonwealth citizens?

Now that the matter has come to light we have to address it. But we cannot address it conveniently and expediently. To do that will get us into trouble of inconsistency.

Upcoming by-election

In the short weeks ahead the country will focus on the upcoming by-election in St Catherine. The by-election will get more attention than constitutional reform has received in any three-week period over the past 12 years save the attention given to the Caribbean Court of Justice. At least that issue was not about political expediency. It had no bearing on the Government's majority. The focus will narrowly be on the PNP-JLP competition for power, election tactics, spending, and who wins. When all of these by-elections are over, we should return to comprehensively review our Constitution. We cannot simply pick out the parts that are convenient from time to time to debate. No wonder constitutional reform has failed to get anywhere.

May 24, 2009

Caricom: Lost within a widened Caribbean Community?

Caricom: Lost within a widened Caribbean Community?
Sir Ronald Sanders
Sunday, May 24, 2009
Source: Jamaica Observer

A technical team has been appointed by the foreign ministers of the Caribbean Community and Common Market (Caricom) to consider an application from the Dominican Republic to join the 15-nation group. The team has been asked to have the report ready for consideration by Caricom heads of government when they meet in Guyana in July.

This will not be an easy process by any means.
Three factors are at play.

The first of these is that Caricom has not yet sufficiently deepened the relationship among its existing members. The second is the different interests of the Caricom countries - some might see an advantage in greater access to the DR's market, while others would regard opening their own markets to the DR as a disadvantage to local companies. The third is deep concerns of Haiti about the DR with regard to human rights issues related to labour and migration.

When the West Indian Commission (WIC) produced its report, "Time for Action", in 1992, it placed great importance on deepening the relationship between the then 13 Caricom member states - all of whom were English-speaking. The Commission regarded the 13 as a "core group" who should deepen their relationship in furtherance of their collective interest in the region, the hemisphere and the wider world.

Amongst the actions that the WIC recommended was the creation of a Single Market and Economy, the establishment of the Caribbean Court of Justice (CCJ) to resolve trade and investment disputes and to replace the British Privy Council as a final appellate court, and the institutionalisation of a Commission - similar to the Commission of the European Union - to manage the operations of Caricom including the Single Market and Economy and external economic relations.

Specifically, the WIC said: "The West Indies must both deepen the process of integration and reach out to a wider Caribbean in appropriate levels of co-operation. The dual-track approach may produce differing levels of integration within the Caribbean; it may produce circles of association that start with the intimate West Indian family and others that encompass an extended family of the non-English-speaking islands of the Caribbean, and a still larger circle of closer relations with countries of the Caribbean Basin that include territories of the South and Central American littoral."

The WIC was especially concerned that "on the economic side, we have to feel our way in enlarging the Caricom market so that we make progress in that direction without being overwhelmed by new members and end up being lost within our own widened community".
President of the Dominican Republic, Leonel Fernandez. The DR has applied for membership to the 15-nation Caricom.

This process was not followed.

Caricom admitted Suriname and then Haiti to membership before the process of deepening the relationship between its core members had advanced very far. The Single Market was not launched until 2006 - 14 years after it was proposed - and its implementation by several countries has been painfully slow since then. The CCJ, while it operates as a court of original jurisdiction for trade and investment disputes among Caricom countries, is not the final appellate court for all but two countries, and the machinery for governance of Caricom remains ineffective since neither a Commission with executive authority nor anything akin to it has been established.

This failure to consolidate and advance the Caricom inner core has weakened the organisation and the capacity of its member states to bargain effectively in the international community and to strengthen their own economies. And, the introduction of new members, before the relationship has been deepened, complicates the process even more, particularly as new members have brought different laws, different domestic decision-making processes and different ambitions.

The argument remains valid that even now Caricom should deepen its own core arrangements by completing the establishment of its Single Market before attempting to expand its membership further. Indeed, expanded membership may serve to slow down - if not derail - the process of moving toward a Single Economy which would have to include a common currency, harmonised tax policies, the development of a Caricom-wide social security system, and free movement of people for several categories of workers.

The DR may not be interested in pursuing these stated goals of Caricom.

On the external relations of Caricom, expanded membership now could also impair the development of harmonised foreign policies. While the Caricom Treaty calls for the co-ordination of the foreign policies of its member states, it is clear that to deal effectively with the international community, co-ordination will not be enough. This is a matter that both existing Caricom countries and the DR will have to consider carefully in their separate interests, for their interests will not always converge.

With regard to new market opportunities, while a free trade agreement exists between the DR and Caricom countries, it covers only trade in about 400 products; it does not cover services. The free trade agreement between the DR and Caricom countries was worth US$578 million last year. But, of that total, natural gas imports from Trinidad and Tobago alone accounted for US$546 million; the remaining US$32 million was neither here nor there. Trinidad and Tobago's natural gas exports to the DR would have taken place even in the absence of a free trade agreement.

Significantly, in 2007 every Caricom country, except Belize and Trinidad and Tobago, had a negative trade balance with the DR. In other words, they did not benefit from the free trade agreement.

But since the European Union (EU) insisted that the DR be part of the Economic Partnership Agreement (EPA) with Caricom, which was signed last year, Caricom countries are compelled to liberalise goods, services and investment with the DR at the same rate as with the EU. Therefore, from the DR's viewpoint, even though there would be benefits in participating in Caricom's single market, the obligations of the "Single Economy" and "Community" aspects of the Caricom Treaty may be too much for it to bear. In any event, it would have to seek a waiver from Caricom's common external tariff since it is higher than the DR's and would increase the cost of imports and make exports less competitive.

Then there are human rights issues over labour and migration between Haiti - already a member state of Caricom - and the DR. Even if other Caricom countries would be willing to limit the DR's membership of Caricom to its Common Market aspects only and not to the Community dimension which would include foreign policy, it is unlikely that Haiti would agree to the DR's membership without binding assurances on these two issues - they are assurances the DR may not be able to give.

The Caricom Treaty does provide for associate membership of Caricom. It is an option that both the DR and existing Caricom states might consider at this time in both their interests.
Sir Ronald Sanders is a consultant and former Caribbean diplomat

May 21, 2009

Lawyers in Jamaica press Govt on CCJ

Lawyers press Gov't on CCJ
Published: Thursday May 21, 2009
Daraine Luton, Staff Reporter
Source: Jamaica Gleaner

THE JAMAICAN Bar Association has moved a resolution at its annual general meeting, urging the Government to move forward with the Caribbean Court of Justice (CCJ).

The resolution calls for "the Government of Jamaica and the other treaty states to address the outstanding obstacles to Jamaica's participation in the Caribbean Court of Justice at the appellate level".

The Bar Association also called for the Government "to take appropriate steps to increase the insulation of the court from political interference, to make the court more accessible as regards cost and jurisdiction and in particular to entrench the Caribbean Court of Justice".
The United Kingdom-based Judicial Committee of the Privy Council is the country's final court of appeal.

The Opposition People's National Party (PNP), which set in motion the CCJ when it held state power, has said that it would like the obstacles to be removed for the abolition of the Privy Council and for the CCJ to become the country's final court of appeal.

However, the governing Jamaica Labour Party (JLP) has maintained that it would only remove the Privy Council as the country's final court of appeal through a referendum. However, the PNP has said that a referendum is not necessary.

The PNP has hinted that it would be pressuring the Government to scrap links to the Privy Council as it is not willing to have the Charter of Rights, which is a review of chapter three of the Jamaican Constitution, being adjudicated by the Privy Council.

"We would want some guarantees about moving towards the Caribbean Court of Justice," A.J. Nicholson, opposition spokesperson on justice, has said.

Meanwhile, during its AGM on March 13, the Bar Association noted that Jamaica now expends considerable funds by way of repayment of the loan from the Caribbean Development Bank, which established the trust which funds the court.
It also said that it is desirable that the final Court of Appeal of Jamaica be more accessible to the average joe, with regard to expense and distance, as well as the requirements for United Kingdom visas.

May 18, 2009

Synopsis: The Vagaries of Democracy in the Caribbean

Commentary: The vagaries of democracy in the Caribbean
Source: Caribbean Net News
Published on Monday, May 18, 2009
Full Text:  Print Version

.......But since political culture affects the well-being of all other institutions in society for better or for worse, short of reconciling deeper psychological, social and leadership dysfunctions, the Caribbean Single Market Economy and the Caribbean Court of Justice remains a tenderly affectionate promise, unlikely to unify, strengthen, and improve the region. 

When will the Caribbean mind yearn to become the motif for our growth and inter-dependence? Exploring this possibility may reveal the splendor of our imagination and a heart of gold.

May 16, 2009

Review of the CCJ - 5 years later

After five years only two countries accept CCJ as final appellate court

Published on Saturday, May 16, 2009  Print Version
Source: Caribbean Net News

The Caribbean Court of Justice (CCJ) entered its fifth year on April 12 since it was inaugurated at a lavish ceremony in Port of Spain, which was attended by nearly all the Heads of Government of the Caribbean Community (CARICOM) as well as most legal luminaries in the region. 

The Court was, however, initially established in February 2001, more than eight years ago. 

It is very unfortunate that, after such a long time, only two countries, Guyana and Barbados, have accepted the CCJ as the final court. No other country has joined after 48 long months. This is indeed a misfortune since most Caribbean countries rid themselves of colonial rule more than four decades ago: Jamaica and Trinidad and Tobago in 1962, Guyana and Barbados in 1966 and the Eastern Caribbean countries a few years later. 

Since these former British colonies achieved political independence so long ago, one would have expected them to have judicial independence as well, especially since they have highly qualified and experienced judges. 

I had the privilege of visiting the Court while in Trinidad for the Fifth Summit of the Americas and was impressed by what I saw -- besides the well equipped libraries, spacious conference room, robing room, etc., I was elated with the Court room’s appearance, with the most modern electronic equipment, which is said to be one of the best in the world. The facilities include: a document reader/visual presenter; the ability to use laptop computers; DVF/VCR; audio/video digital recording (microphones situated throughout the courtroom); wireless internet access, and audio/video transcripts. 

Former Trinidad and Tobago Attorney General Ramesh Maharaj said that the judges have little to do and it is a waste of taxpayers’ money. His statement is somewhat surprising since it was under his party's administration that the Court was established and up to this day Trinidad and Tobago has not joined. 

Dominica’s Prime Minister Roosevelt Skerrit made a sweeping statement when he said that if the region is not serious about the CCJ, it should close down the court. 

Skeritt, a few months ago, asked his Attorney General to engage the local Bar Association as well as the political opposition with a view of having the decision fully implemented. I have not heard the progress of those discussions. 

However, there is some glimmer of hope that at least one more country will join. Belize’s Prime Minister Dean Barrow, one of the first graduates from the Council of Legal Education in the Caribbean, has announced that his country will take steps to remove the Privy Council as the final Court of Appeal. 

I contacted his office on Tuesday and was advised that a Bill will be presented to Parliament next month to pave the way to remove the Privy Council as the final Court. Three-fourths of parliamentary votes are required, but it is understood that the opposition will support the move since it had advocated the measure when it was in government. 

There is no doubt that there is reluctance on the part of governments to get rid of the Privy Council as the final court for varying reasons. Jamaica at one stage claimed that the CCJ will be a hanging court, but they cannot press that issue now because that government recently passed legislation to retain the death penalty. 

The JLP government was in power when the idea of setting up of the CCJ first started, but now the party, which is back in power after 15 years, is somewhat reluctant -- new reasons have surfaced, including the heavy costs of maintaining the Court, pointing out that, when the first idea was mooted 20 years ago, the Jamaican dollar was much stronger, and the latest is that the Court does not have a Jamaican as a judge, although its population is nearly 2.5 million -- more than all the other 11 countries combined. 

Former Jamaican Attorney General Dr Oswald Harding, who was the AG in 1988, said that he is very disturbed that no Jamaican was appointed as judge when he knew that about eight well qualified jurists had applied. 

I have been advocating for a distinguished West Indian to be appointed as a lobbyist, but both CARICOM and the CCJ are both reluctant to do so. CARICOM, it is understood, feels it should distance itself from the CCJ, especially since it is a party to recent litigation before the Court. I refer to a law suit brought by Trinidad and Tobago Cement Company against CARICOM. 

On the other hand, the CCJ feels that it should not indulge in such an exercise; but they nevertheless held seminars in jurisdictions such as Jamaica, Antigua, Barbados, Belize on the functions and the operations of the original jurisdiction of the CCJ. 

It is worrying that CARICOM countries do not even use the CCJ in its original jurisdictions, since they do not have to seek constitutional amendments to do so. In four long years only three such matters have reached the Court. 

It is my humble and respectful view that CARICOM should have sensitised the public and ensured that the necessary legislation was in place to accept the CCJ as the final court long before the Court was established and, as Dame Dr Bernice Lake, QC, a distinguished jurist from Anguilla, put it, "The regional governments disenfranchised the public when they set up the CCJ without referenda."

Duke Pollard CJC endorsed as a candidate to seek election as a judge of the ICC.

Region bids for ICC seat
Source: Trinidad news

CARICOM Foreign Ministers have endorsed candidatures for a seat on the International Criminal Court (ICC) and re-election of an Assistant Secretary General of the Organisation of American States (OAS).

Guyana-born jurist Dr Duke Pollard, currently one of the seven justices of the Port of Spain-based Caribbean Court of Justice (CCJ), has been endorsed as a candidate to seek election as a judge of the ICC.

The current Assistant Secretary General of the OAS, Suriname-born diplomat, Albert Ramdin, was given the green light to seek re-election in that post of the Washington-based hemispheric organisation.

The unanimous endorsements, which came during last week's meeting of Caricom Foreign Ministers in Kingston, Jamaica, will be forwarded for expected ratification by Heads of Government when they meet for their regular annual summit in Guyana in July.

Pollard, a former consultant on international law projects for the UN and Director of the Caricom Legislative Drafting Facility prior to his CCJ appointment, may have to compete with other candidates of  the Latin America region.

Trinidad and Tobago's former attorney general, Karl Hudson-Phillips QC, was the first candidate of the Carib-bean/Latin America region to be elected as a judge of the ICC which he served for four years before opting to resign for personal reasons.

Ramdin, a former assistant secretary general of Caricom with responsibilities for Foreign and Community Relations, had served for three years as special adviser to ex-OAS Secretary General, Cesar Gaviria, before seeking the office he has now been holding since 2005.

The offices of both OAS incumbents-Secretary General, Jose Miguel Insulza, Chile's former foreign minister, and Ramdin are due for election at the organisation's General Assembly in June 2010.

May 15, 2009

Barbados seeks to extend retirement age of CCJ judges to 75

Barbados seeks to extend retirement age of CCJ judges to 75
Published on Friday, May 15, 2009   Print Version
By Oscar Ramjeet 
Source: Caribbean Net News Special Correspondent 

BRIDGETOWN, Barbados -- While most Caribbean countries seem hesitant or reluctant to join the Caribbean Court of Justice, Barbados, which is one of the two countries who have joined the Appellate Jurisdiction of the regional court, is seeking parliamentary approval to extend the retirement age of judges. 

The Barbados Parliament is now debating a Bill that primarily speaks to extending the age of retirement of the judges from 72 to 75. 

The Barbados Advocate reported that Senator Haynesley Benn, acting Leader of Government Business in the Senate, was leading the debate in the Upper House to the Caribbean Court of Justice (Amendment Bill) and the Constitution (Amendment) Bill. 

Benn, who is also Minister of Agriculture, said that it is regrettable that, after nearly 50 years of independence, by some Caribbean Community (CARICOM) member states, that they are still hesitating, and toying with the issue of whether this region should have its own final appellate court, rather than having to rely on its former colonial masters. 

The minister also said that it is being suggested that Britain is considering revamping its own judicial system and plans in the near future perhaps to dismantle the Privy Council. He explained that, if agreed to by their legislators, it will probably give way to a system similar to that which presently obtains in the United States of America. 

"So we should feel comfortable in the Caribbean having our own Caribbean Court of Justice, where all matters pertaining to the Caribbean can be dealt with here, rather than having to be at the doorsteps of the Privy Council in Britain." Benn said. 

Benn said that the extension is a good one, as it allowed the judges to have more time to give of their value to the entity and by extension the judicial culture in the region.