December 02, 2009

CCJ's integrity in cement saga
Published: Wednesday, October 21, 2009

SINCE the Caribbean Court of Justice (CCJ) dismissed the case brought against the Caribbean Community by Trinidad Cement Ltd (TCL) in connection with the application of Caricom’s Common External Tariff (CET) on cement imports in August there have been a few developments of significance.

The court had ruled that while there was a ’procedural flaw’’ in the authorisation by the community’s Secretary General and its Council for Trade and Economic Development (COTED) to suspend the tariff to facilitate cement imports by Jamaica in 2008 from sources other than TCL, it could not find a basis for treating Caricom’s decision as illegal.

COTED, meeting in Barbados earlier this month, considered a set of proposals presented by Caricom’s Secretary General, arising from the court’s observations about guidance when decisions are to be made by ministerial councils.

However, within six weeks of its ruling in favour of Caricom, the CCJ, which serves as a final appellate institution for some community states, and with original jurisdiction for all participating countries in the settlement of trade disputes, was to authorise the Guyana government to reimpose, within 28 days, the CET on cement imported from non-Caricom countries-an action the country had taken some years ago.

TCL, as a regionally-based company, had applied to the CCJ for such an order, contending that since it has the capacity to satisfy the cement needs of Guyana, there was no justification for the government in Georgetown to suspend the CET to permit cement imports from other sources.

The time for implementation of the court’s order expired on September 17 while the Guyana Government-which has been claiming unreliability on TCL’s part to satisfy competitively its cement requirements, was manoeuvring for an extension of time which it formally sought on September 23.

The CCJ set October 14 for the parties concerned to be engaged by telephone on Guyana’s extension application. But eight days prior to the scheduled hearing via telephone, TCL filed an application with the CCJ to hold Guyana’s attorney general in contempt of court for failing to implement the CET as the court had ruled.

Four days later, on October 12, TCL filed a response opposing the court granting an extension of time to Guyana to reimpose the CET.

By October 15, faced with what head of the presidential secretariat Dr Roger Luncheon, described as its dwindling options, the Guyana government announced that it would abide by the CCJ’s ruling on reimposition of the CET on cement imports from non-Caricom sources.

That decision was to take effect even as this column was being written. However, the case of contempt filed by TCL remains in force and Guyana’s attorney general said that they would respond to the application filed.

Questioned about whether TCL’s contempt application was of more than academic interest in view of Guyana’s decision to abide by the substantial ruling to reimpose the CET, two well known legal luminaries, who prefer not to be identified, said that while the case may still go forward, mitigating factors could be expected to surface.

However, it was doubtful, as one of the legal experts surmised, that TCL may wish to exercise the option of withdrawing its contempt of court application, given the bitter verbal exchanges in the media by both sides.

Those exchanges reached a very troubling stage when the President of Guyana, Bharrat Jagdeo, alluded to a recent meeting of Caricom Heads of Government at which the issue of a conflict of interest was raised. It centred around TCL’s chief executive officer, Rollin Bertrand, who also serves as chairman of the CCJ’s Trust Fund while being actively involved in litigation before the regional court.

TCL’s board had a sharp rebuttal in defence of the integrity of its CEO. Whatever the nature of the concerns, as alluded to by President Jagdeo, no conflict of interest has been established.

Now, therefore, while we await the outcome of the contempt of court matter, the question arises as to whether both parties-Guyana Government and TCL-will consider moving towards a healing process rather than maintain a hostile relationship.

In all of the scenarios that have emerged, what certainly stands out is the independence and integrity of the CCJ.

Little wonder that even those political parties and lawyers who still nurture reservations about the CCJ in preference to the Privy Council are now shifting to the reality that with the judges of the Privy Council anxious to part company with this region, all should come aboard this still-fledgling regional court.

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