December 15, 2009

CARICOM: THE IDEAL OF GOOD GOVERNANCE - THREE PILLARS OF REFORM

SPEECH

Of

December 4, 2009

at

THE INSTITUTE OF POLITICS

By

Dr. Caleb M. Pilgrim

Last time I was here was on Friday 13th. I thank Comrade Astor Watts for choosing a more auspicious date at the beginning of the holiday season, and Comrades Maycock and Hunte and you especially for inviting me and coming out to this lecture.

It is fitting that we should discuss today’s topic here at the DLP’s Headquarters insofar as the late Errol Barrow was a committed regionalist, the co-founder of CARIFTA and a co-founder of CARICOM. My arguments today centre on three (3) specific proposals:

  1. A CARICOM Administrative Tribunal
  2. A CARICOM Human Rights Commission
  3. A CARICOM Ombudsman

PILLAR NO. 1

I have previously spoken of the need for a CARICOM Admin. Tribunal. Such a Tribunal would hear disputes between employees and the respective CARICOM Institutions, Associate Institutions, Organs or Bodies.

We first canvassed this idea of a CARICOM Administrative Tribunal around September 2007 before litigating the matter of Johnson v CARICOM, CCJ AR2 of 2008 (OJ), the second case filed under the Original Jurisdiction of the CCJ. As you know, the C.C.J subsequently ruled that it did not have jurisdiction to hear that matter, a case in which the Plaintiff, a Barbadian woman, alleged that her employer, a regional institution, had discriminated against her based on her Barbadian nationality in violation of Article 7 of the Revised Treaty of Chaguaramas establishing CARICOM and the CSME. Article 7 of the Revised Treaty expressly prohibits discrimination on the basis of nationality.

That ruling has serious implications for certain Barbadian employees. For, it is today the case that a fair number of Barbadians are employed in CARICOM, its Institutions and Associate Institutions in Barbados, e.g. CDB, CARDI, CARICAD, CMO, CMI, CTO, CDEMA. The need for a CARICOM Administrative Tribunal is evident in the fact that any CARCOM employee, like any other employee, could be faced at any time by an “adverse employment action”. By an “adverse employment action” I mean an action such an oral warning, a written warning, a suspension, and the ultimate – termination of one’s employment. Faced with an adverse employment action, the employee of a CARICOM Institution or Associate Institution may well today have no legal remedy, based on the Court’s dismissal of that matter, and absent amendment and radical revision of Chapter 9 (Disputes Settlement Provisions) of the Revised Treaty of Chaguaramas. I suggested such revision in an Open Letter to the Secretary-General, the Honorable Dr. Edwin Carrington, 2009 (Seabrook News July 7, 2009). At the regional and international level, an Administrative Tribunal would protect the rights of all Caribbean workers employed by CARICOM and its various entities.

Some of you will recall that the Hon. Arni Walters, Minister of Labour, in his talk “The Modernization of our Employment Relations – The Uses of Legislation and Social Dialogue” here at the Institute on October 16, 2009 spoke of the new Employment Rights Bill. Any such Bill, and eventually any such legislation, must include protections for the rights of ALL Barbadian employees. It must therefore include legal protections for all those who work for international institutions headquartered in Barbados, whether that be CXC, CEDA, CTO, EU, CMO, CARDI, IICA, even various diplomatic missions. My argument is that at the level of domestic law, the Barbadian employee, professional and non-professional, established and non-established, requires protection with respect to their employment rights, as a matter of domestic, internal law, when confronted by an adverse employment action.

At another level, the Barbados Government is party to a number of international treaties and conventions. At the level of public international law, Article 41 (1) of the Vienna Convention on Diplomatic Relations 1961 provides:

“without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving state”.[1]

It is therefore undisputable that Regional and International Organizations and even Diplomatic Missions have a duty to conform their behaviour to local law and regulations, to wit, Barbados’ Laws and Regulations.

Correspondingly,

“It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by act contrary to international law, committed by another state, from whom they have been unable to obtain satisfaction through the ordinary channels”[2].

Any Government therefore, has a duty to protect the legal and constitutional rights of its citizens. So too the Barbados Government has a duty to protect the legal and constitutional rights of ALL Barbadian citizens, no different from the Guyana Government’s duty to protect the interest of Guyanese nationals[3]. This goes for all CARICOM Member States.

The States in theory acts “parens patriae” to protect the interests of all of its nationals. It had such a duty in the case of Johnson v CARICAD and indeed Justice Hayton raised the issue in the proceedings why was the Barbados Government not a defendant in the proceedings before the CCJ based on the breach of that duty to protect the interests of the Plaintiff, a national of Barbados.

In the Draft Statute I proposed Article 1 stipulated that the Tribunal should be headquartered in Barbados. It now appears that CARICOM may well have accepted the need for an Administrative Tribunal. However, CARICOM’s history of implementing reform proposals has been somewhat checkered. Per P.J Patterson, implementation of decisions arising from conferences, summits, special meetings, inter-sessionals and other regional gatherings has long been a sticking point.[4] We clearly need such a tribunal. We believe that it should be located here. We ask your support in moving our government to lobby effectively for such implementation.

PILLAR NO. 2

I turn now to the question of a CARICOM Human Rights Commission.

The Vienna Declaration and Programme of Action on Human Rights 1993 adopted by the Vienna World Conference states, inter alia,

“All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms”.[5]

The subject of Human Rights is thus of critical importance in words of Justice Higgins,

“I believe profoundly in the universality of the human spirit. Individuals every where want the same essential things: to have sufficient food and shelter; to be able to speak freely; to practice their own religion or to abstain from religious belief; to feel that their persons is threatened by the state; to know that they will not be tortured, or detained without charge and that, if charged, they will have a fair trial. I believe that there is nothing in these aspirations that is dependent upon culture, or religion, or stage of development. They are as keenly felt by the African Tribesman as by the European City dweller, by the inhabitant of a Latin American Shanty Town as by the resident of a Manhattan apartment”.[6]

It is the case today that we all recognize a duty not to interfere in the internal affairs of the sovereign State, but Human Rights are a different matter. Human rights standards transcend questions of internal law.

Thus, we have seen an enormous post-war growth with respect to Human Rights internationally and a large number of international conventions which speak to the issue. For example, the Universal Declaration of Human Rights 1948[7], The International Covenant of Civil and Political Rights (ICCPR) 1966[8], The International Covenant on Economic Social and Cultural Rights (ICESCR) 1966[9], The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[10], The Convention Relating to the Status of Refugees 1951[11], The International Convention on the Protection of Rights of All Migrant Workers and Members of their Families 1990[12].

(Even the latter issue – the Protection of the Rights of All Migrant Workers, including the question of freedom of movement implicates Human Rights. The security of migrant workers within the Caribbean is a matter of concern for all of us and, logically, should form one of the bases for a CARICOM Human Rights Commission).

Several other Conventions have been enacted to protect Human Rights., e.g. The Convention on the Rights of the Child (CRC)[13], The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984[14]. The American Declaration on the Rights and Duties of Man 1948[15]. The American Convention on Human Rights 1969[16]. European Convention for the Protection of Human Rights and Fundamental Freedoms 1950[17]. (Other Protocols Relating To The European Conventions). The African Charter on Human and Peoples’ Rights (1981)[18].

All such international conventions, at a minimum, ensure citizens six (6) core human rights: (1) the right to life, (2) liberty, (3) the right to be free from discrimination, (4) the right to be free from torture and (5) the right to be free from other forms of cruel, inhuman and degrading treatment, and (6) the right to a fair trial.

It is the case that we in the Caribbean have international legal obligations under the OAS Charter, the American Declaration of Human Rights and the Inter-American Convention of Human Rights. The Caribbean States form a discrete group (CARICOM) within the OAS and therefore must be cognizant of their obligations to protect Human Rights under the various Conventions. A CARICOM Commission on Human Rights would hear complaints relating to Human Rights and act as the guarantor of all those rights espoused in the Charter on Civil Society adopted by the Caribbean Heads of Government on 19th February, 1997.

The facts on the ground also urge the need to consider a CARICOM Human Rights Commission, e.g. one example - the torture and recent genital mutilation of a 14 year old by members of the Guyana Police Force (GPF) acting under colour of law; also the 449 killings recently reported on by the Guyana opposition parties calling for an investigation into these murders.[19]

Another example: The disappearance of 160 children in Jamaica and the inability of the Jamaica Government to resolve this issue also implicate Human Rights issues and possibly Jamaica’s obligation under the CRC. Such an issue would, in theory, be susceptible to enquiry by a CARICOM Human Rights Commission.

I need not raise at this point the issue of homophobia and violence, including murder, against homosexuals in Jamaica and elsewhere. Some years ago, Time Magazine described Jamaica as “the most homophobic place on earth”.[20] Time referred to the victim of an alleged assault by Buju Banton and a number of Banton’s associates, where the victim was blinded in one eye by kicks and blows from a board allegedly inflicted by Banton. Per Time, the case against Banton was subsequently dismissed on the grounds of lack of sufficient evidence.[21] Regardless of our own personal views, homosexuals – like anyone else – have a right to life as well as all other rights guaranteed under basic human rights conventions. Also, incitement to murder - Boom Bye Bye - is unlawful and wrong, by any legal standard.[22]

With respect to Haiti, as one commentator observed:

“few places in the world, and no places in the Western Hemisphere, are poorer. The international donor community classifies Haiti as a fragile state – the Government cannot or will not deliver core functions to the majority of its people, especially the poor. Haiti is a post-conflict state - one emerging from a coup d’├ętat and political unrest. Others have variously characterized Haiti as a nightmare, predator, collapsed, failed, failing, parasitic, plutocratic, phantom, and virtual or pariah state.[23]

Human Rights violations in Haiti should also be susceptible to the jurisdiction or competence of a Human Rights Commission (Compare the ECHR's and the IACHR's).

Little or no use of the IACHR may well derive from the fact that it is (1) relatively remote (2) our unfamiliarity with the Inter-American Human Rights System – I suspect that few Barbadian lawyers, not to mention the Barbadian public and most policy makers, are well acquainted with the Inter-American Human Rights System, (3) costs/expense and (4) language and culture, although interpreters are provided. It is still the case that we know relatively little about the dominant OAS/Latin American Culture.

What then would be the advantages of a CARICOM Human Rights Commission?

(1) Consonant with our international Human Rights obligations

(2) relatively easy access,

(3) cheaper and

(4) the obstacles related to language and culture would be minimized.

Hopefully, justice would not only be done but would be seen to be done. A CARICOM Human Rights Commission would/should aid transparency and the Rule of Law.

The fact that the IACHR’s appears vastly underutilized by Caribbean people is therefore not a justification for not having a CARICOM Human Rights Commission. The African Court of Human and Peoples’ Rights established January 25, 2004,[24] has so far heard no cases. Does this mean that there have been no violations of Human Rights in Africa over the past five (5) years? (Zimbabwe, Congo, Darfur, Women in Nigeria, Kano etc.) A CARICOM Human Rights Commission should easily answer criticisms such as - remoteness, inaccessibility, being user friendly, even the issue of personal and political intimidation.

It may well be that the CCJ Original Jurisdiction (underutilized) might have to be expanded to hear Human Rights cases – after ventilation/fact finding, investigation by a Human Rights Commission. There has been talk about a Human Rights Commission in Barbados. This has not yet come to pass for whatever reason. Given the exigencies of the circumstances, it is to be hoped that a CARICOM Human Rights Commission would not be lost on the distant horizon in a maze of endless red tape and bungling bureaucracy.

The question of a CARICOM Human Rights Commission was raised by Attorney Doreen Johnson in the Stabroek News, November 17, 2009, where she not only called for a Human Rights Commission but she also called for an Ombudsman for CARICOM. A copy of her article is enclosed in the materials given to you.

This brings me to the third Pillar.

PILLAR NO. 3

The question of a CARICOM Ombudsman (Compare EU Ombudsman – not suggesting that we practice “monkeyism”).

A number of advantages attach to the Institution of the Ombudsman. A CARICOM Ombudsman would look into allegations of maladministration, waste, corruption, mismanagement, and even issues pertaining to occupational safety and health etc.

A CARICOM Ombudsman would exercise residual jurisdiction over certain complaints e.g. complaints involving migrant workers where such disputes potentially fall between the cracks, and the migrant worker is unrepresented by national labour organizations. The office would be itinerant in nature like the CCJ.

The jury is still out with respect to the success of national integrity legislation in the Caribbean. In the Regional context, however, the Ombudsman could function within the ambit of a CARICOM Model Law on Integrity, Transparency and Accountability.[25]

The Ombudsman would not only report and give recommendations. His reports and recommendations would be sent to the Secretariat and Heads of Government Conference, not merely to be debated and discussed, but to be acted upon. His/her recommendations to have, once adopted by the Conference of Head of Governments, legal force and made binding on CARICOM and the member States.

To summarize the key points with respect to a CARICOM Ombudsman:

(1) There should be established an Office of the Ombudsman, who would be selected by ballot and empowered to receive complaints from any citizen of the Community including persons natural and juridical of any of the Member State.

(2) The Ombudsman shall have jurisdiction over complaints concerning instances of maladministration in the activities of all Community Institutions, Associate Institutions, Organs or Bodies.

(3) Where a prima facie case has been established, the Ombudsman shall conduct inquiries, either on his own initiative or on the basis of complaints submitted to him directly or indirectly, except where the facts alleged are sub judice or res judicata.

(4) Where the Ombudsman establishes maladministration, he shall notify the parties of his findings and give the offending party 30 days within which to remedy the delict. The offending party may file an objection to such findings within 30 days, failing which the Ombudsman’s recommendations shall become binding on the parties.

(5) The Ombudsman shall then forward a report on the matter to the Conference of Heads of Government and the Institution concerned. The Complainant shall also be informed of the outcome of the Ombudsman’s inquiries.

(6) The Ombudsman shall file a report annually with the Conference of Heads of Government detailing the outcome of all of his investigations.

(7) The Ombudsman shall be appointed by the Conference of Heads of Government for a period of five (5) years. (cf. Art. 205 (2) of the Revised Treaty of Chaguaramas, specifying the tenure of arbitrators as five (5) years).

(8) The Ombudsman shall be ineligible for reappointment.

(9) The Ombudsman may be dismissed by the Conference of Heads of Government where it is conclusively established that he no longer fulfils the conditions required for the performance of his duties or where he is adjudged to be guilty of serious misconduct.

(10)The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any official, CARICOM Institution, Associate Institution, Organ, Body, or related entity.

(11) The Ombudsman may not, during his term of office, engage in any other occupation, paid or unpaid.

(12) The Conference of Heads of Government shall, after seeking an opinion from the Secretariat and acting by majority, lay down the regulations and general conditions governing the performance of the Ombudsman's duties.

The Ombudsman shall be immunized and isolated from political interference, thus preserving his independence and impartiality. He shall be subject to removal ONLY by the CARICOM Heads of Government Conference, after an evidentiary hearing in which he would have had guaranteed to him similar rights as espoused in the ECHR e.g. right to a fair trial, right to he heard.[26]

CONCLUSION:

Sir Shridath Ramphal once remarked that:

… Sometimes it seems as if small states were like small boats pushed out into a turbulent sea, free in one sense it, but without oars or provisions, compass or sails, free to perish or perhaps to be rescued and taken aboard a larger vessel”.[27]

Consider employees’ rights and basic, fundamental human rights in this context of a larger vessel, if you will.

In light of the foregoing, there should be a complete revamping and a new and improved Chapter 9 (Disputes Settlements Provisions) of the RTC.

We have urged that a CARICOM Admin. Tribunal be headquartered in Barbados. We clearly need such a tribunal. We believe that it should be located here. The CARICOM Human Rights Commission would similarly be located here along with the office of a CARICOM Ombudsman. Such a Human Rights Commission could only deepen respect for human rights in the region. An Admin Tribunal, a Human Rights Commission and an Ombudsman have in common shared ideals as to prompt and efficient administration of justice and adherence to the Rule of Law. For the last several years the Transparency International Corruption Perception Index (CPI) has ranked Barbados as the least corrupt among CARICOM States. The Transparency International 2008 Corruption Perception Index ranked Guyana among the 54 most corrupt countries in the world. This year, 2009, it ranked Barbados # 20, St. Lucia # 22, Dominica #34, T & T # 79, Jamaica # 99, Guyana # 126 out of the 180 states surveyed. We ask your support in moving our government to lobby effectively for implementation of the reforms we have raised.



[1] Adopted 18 April, 1961, 500 U.N.T.S. 95

[2] Mavrommattis Palestine Concessions Case, Greece v U.K. (1924) P.C.I.J. Rep. Series A, No. 2 p12

[3] “New Immigration Policy given Barbados Bad Name”, Stabroek News, Statement by President Jagdeo re protection of Guyanese nationals.

[4]. Caribbean Net News, “Jamaican Prime Minister wants permanent political institution within CARICOM”, Tuesday, July 7, 2009.

[5] Adopted by consensus 25 June 1993

[6] Roslyn Higgins, Problems and Processes: International Law and How we use it, 1994 pages 96-97

[7] Adopted 16th Dec., 1948

[8] Adopted 16th Dec., 1966, 999 U.N.T.S. 171

[9] Adopted 16th Dec., 1966, 993 U.N.T.S. 3

[10] (1980) 19 I.L.M. 33. See also CEDAW optional protocol 1999, (200) 7 I.H.R. 294 which provides a right of individual petition.

[11] 189 U.N.T.S. 150

[12] (1991) 30 I.L.M. 117

[13] (1989) 28 I.L.M. 1446. See also 2000 CRC Optional Protocols on Children in arm conflict and on the sale of Children, Child Prostitution and Child Pornography (2000) 8 I.H.R.R 288, 293

[14] Adopted 10 Dec., 1984 1465 U.N.T.S. 85. See also the Optional Protocol “2002” adopted 18 Dec., 2002 U.N.G.A. A/RES/57/199.

[15] O.A.S Res. XXX adopted by the Ninth Int’l Conference of American States (1948) to Human Rights on the Inter-American System, OEA/Ser.L.V/II.82 doc. 6 rev. I at 17 (1992)

[16] Adopted 22nd Nov., 1968 OAS Treaty Series No. 36

[17] ETS No. 5 (protocol 11 ETS No. 155) as amended by protocol Nos. 3, 5, 8, 11 which entered into force on 21 Sept., 1970, 20 Dec., 1971, 1 Jan. 1990 and 1 Nov., 1998 respectively.

[18] Adopted 27 June 1981 1520 U.N.T.S 363

[19] Stabroek News , Nov. 18, 2009 “Dossier Ups Human Rights Probe Called – 449 Killings cited”

[20]. April 12, 2006.

[21]. Ibid. The article also states “ [i]n the past two years, two of the island’s most prominent gay activists, Brian Williamson and Steve Harvey have been murdered. Perhaps most disturbing, many anti-gay assaults have been acts of mob violence. In 2004, a teen was almost killed when his father learned his son was gay and invited a group to lynch the boy at his school. Months later, witnesses say, police egged on another mob that stabbed and stoned a gay man to death in Montego Bay. And … a Kingston man, Nokia Cowan, drowned after a crowd shouting “batty boy” … chased him off a pier.

[22]. “Artists such as Buju Banton, Bounty Killer, Beenie Man, Vybz Kartel, Movado, Elephant Man, Sizzla, Capleton, T.O.K., Anthony B and Shabba Ranks wrie and perform songs that advocate attacking or killing gays and lesbians”.. Wikipedia, “LGBT rights in Jamaica”. December 3, 2009.

[23]. Leon Charles, How Can the International Community Promote Security and Democracy in Haiti, Master’s thesis, Inter-American Defense College, Washington, USA, 05-08-2006, http://library.jid.org/en/thesis/Charles.pdf.

[24]. The Protocol to the African Charter of Human and Peoples’ Rights on the Establishment of an African Court on Human Rights, adopted at Ouagadougou, Burkina Faso, June 10, 1998, entered into force January 25, 2004.

[25] There have been a number of attempts at national legislation with respect to integrity legislation in the Caribbean e.g. Trinidad

[26] . See also the American Convention on Rights and Duties and the Inter-American Declaration on Human Rights, the OAS Charter.

[27]. Shridath Ramphal, Conference about General Security of the Commonwealth Nations, 1984.

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