February 28, 2009

Inordinate Delay of Civil Appeal in Barbados

'Step on it' Published on: 2/28/09.
by HEATHER-LYN EVANSON
Source: Nation Newspaper, Barbados

THE ISLAND'S COURT OF APPEAL has come in for a tongue-lashing from the region's highest court.

It has to do with the length of time the local appellate court took to deliver one of its judgements.
Recently, the five judges of the Caribbean Court of Justice (CCJ) heard the civil appeal of Yolande Reid and Jerome Reid.

In their decision, the five judges spoke about the five years it took for the Court of Appeal to give its ruling.

Justice of Appeal Adrian Saunders, who delivered the judgement, said the CCJ's President Michael de la Bastide had previously spoken about the issue and had expressed the court's strong disapproval of judicial delays.

"The effectiveness of a judiciary is seriously compromised if it fails to monitor itself in respect of the time taken to deliver judgements and to arrest promptly any tendency to lapse in this aspect of its performance," said Justice Saunders.

"This is the second time we have had occasion to call attention to inordinate delays in the delivery of judgements in Barbados. We trust that effective remedial action, if not already taken, will now be taken to ensure that judgements are delivered within a reasonable time as required by the Constitution of Barbados," the appellate judge said.

The court went on to say it felt that no judgement should be outstanding for longer than six months.

"And unless a case is one of unusual difficulty or complexity, judgement should normally be delivered within three months at most," Justice of Appeal Saunders said.

Justice of Appeal Saunders sat with President of the Court de la Bastide and the Justices of Appeal Desirée Bernard, Jacob Wit and David Hayton.

February 27, 2009

Summary of Application under the Original Jurisdiction


IN THE CARIBBEAN COURT OF JUSTICE
Original Jurisdiction
CCJ Application No. OA 2 of 2009
Between
TRINIDAD CEMENT LIMITED
TCL GUYANA INCORPORATED Claimants
And
THE STATE OF THE CO-OPERATIVE
REPUBLIC OF GUYANA Defendant

The subject matter of the application relates to the suspension of the implementation of the Common External Tariff (CET) on non-CARICOM imports of cement into Guyana.

The Claimants seek the following relief in their application:-
(a) A declaration that the Republic of Guyana, a party to the Revised Treaty of Chaguaramas and a Member State of the Community has violated the provisions of Article 82 of the said Treaty by failing to implement and maintain the Common External Tariff of 15 per cent in respect of imports of building cement (grey) from non-CARICOM sources as described in the First Schedule in the Guyana Customs Act, Cap. 82:01 under the Heading numbered 2523.29.10;

(b) A declaration that the Government of Guyana as a party to the Revised Treaty of Chaguaramas and a Member State of the Caribbean Community by failing to maintain the Common External Tariff of 15% in respect of imports of building cement (grey) from non-CARICOM sources as described in the First Schedule in the Guyana Customs Act Chapter 82:01 under the heading No. 2523.29.10 has violated the right and entitlement of the Claimants to the protection of the provisions of the Revised Treaty of Chaguaramas and as a consequence the Government of Guyana is liable to pay compensation to the Claimants for any loss suffered by reason of its conduct as aforesaid;

(c) An order directing the Government of the Co-operative Republic of Guyana, a party to the Revised Treaty of Chaguaramas and a Member State of the Community, to bring its regime for imports of building cement (grey) into conformity with Article 82 of the Revised Treaty by implementing and maintaining the Common External Tariff of 15 per cent on imports of cement from non-CARICOM sources;

(d) Damages for lost income suffered by the First Claimant in its capacity as 80% shareholder in the Second Claimant in the amount of US$532,214.00 for the period January to December 2007 and continuing;

(e) Damages for lost profits suffered by the Second Claimant as a direct result of the Republic of Guyana’s failure to implement the Common External Tariff on building cement (grey) in the sum of US$2,084,540.00 for the period of January to December 2007 and continuing;

(f) Exemplary damages;

(g) Interest at such rate and for such period as the Court deems fit;

(h) An order that the costs of these proceedings be borne by the Defendant;

(i) Such further or other orders as the Honourable Court deems fit.
Any person or Contracting Party which wishes to intervene in the proceedings must file an application for leave to intervene within six (6) weeks of notification of the filing of the originating application. Part 14 of the Caribbean Court of Justice (Original Jurisdiction) Rules 2006 sets out the procedure on an application to intervene in the proceedings.
Dated the 27th day of January 2009

February 18, 2009

Challenging judgment for CARICOM

OUR CARIBBEAN: Challenging judgment for CARICOM
Published on: 2/13/09.
by RICKEY SINGH
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.

February 10, 2009

CCJ's Second Judgment under it's Original Jurisdiction

CCJ Application No. AR 3 of 2008
Trinidad Cement Ltd
And

The Caribbean Community


M. de la Bastide, President and R Nelson, D Pollard, A Saunders,
D Bernard, J Wit and D Hayton, Judges

Application for special leave to commence proceedings under Article 222 of the Revised Treaty of Chaguaramas was filed at the Court on 11th December 2008 with annexures. Parties submitted written submissions and to the public hearing was held on 15th January 2009

JUDGMENT SUMMARY

COTED and the Secretary General of CARICOM authorised the suspension of the CET on cement for Jamaica and a number of OECS States. TCL, a cement manufacturer, wishes to complain against that suspension and is accordingly requesting special leave to bring an action against the Community seeking :
(1) declarations that the COTED suspension and the Secretary-General’s suspension are irrational or unreasonable, illegal and null and void;
(2) orders setting aside or quashing these suspensions;
(3) a restraining order against the Community and
(4) a mandatory injunction against the Community to revoke the suspensions and notify those affected.

At this stage the CCJ merely had to determine whether TCL had satisfied the conditions for special leave set out in Article 222 of the Revised Treaty. In determining that TCL had satisfied those conditions the CCJ rejected the contention that to admit a direct 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 state sovereignty by Member States parties to the Revised Treaty.
The Court stated, inter alia:

"By signing and ratifying the Revised Treaty and thereby conferring on this Court ipso facto a compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the Revised Treaty, the Member States transformed the erstwhile voluntary arrangements in CARICOM into a rule-based system, thus creating and accepting a regional system under the rule of law. A challenge by a private party to decisions of the Community is therefore not only not precluded, but is a manifestation of such a system. Therefore it is not correct to say that by such challenge the functioning of the Community will be greatly hindered or that the exercise of state sovereignty by Member States parties to the Revised Treaty would be unduly constrained. 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."

February 09, 2009

Searching for the Silver Lining

Searching for the Silver Lining
Published: Sunday February 8, 2009
A.J. Nicholson, Contributor

The recent announcement by the prime minister that, by the end of this month, there will be a new governor general in Jamaica, once again brings into focus certain issues relating to the reform of our constitutional arrangements.

It has long been recognised that the method by which the appointment is made of the governor general, who is the representative of our head of state, the British monarch, is less than open and transparent, since the decision rests in the hands of one person, the prime minister.

This is not to say that there has ever been any real quarrel or dissent concerning any of the appointments that have been made since independence. Conventional wisdom, however, holds that the fulfilment of that kind of public obligation requires broader input to satisfy the dictates of transparency.

Political upheaval

Some people say that this kind of issue is really of no moment. They maintain that the status quo of the British monarch as our head of state has no economic, social or political drawback, and 'if it ain't broke don't fix it'. They say that we have not witnessed any kind of social or political upheaval that should drive us to change course in this regard, and that there are other countries which are in that same boat and have managed to climb the economic ladder with sustained success.

The obvious question that arises, therefore, is: what it is that has impelled former colonies within the British empire to change from a monarchical to a republican system of government with their own indigenous heads of state? The answer is simple, yet profound: it serves to instil the kind of confidence which propels their citizens to say and mean that they must rely on themselves to survive.

Economic headaches

And that is the kind of message that must be adopted by the peoples of nation states even in the best of times; in times of crisis, that point of significance becomes an imperative.

Indeed, others will say that this is a time of crisis and economic headaches, and that it cannot readily be expected that a people who are labouring under such stress would easily turn their minds to constitutional issues such as the appointment of the head of state and the transformation to a republican form of government.

The truth is that reasons and excuses can always be found for leadership not to embark on certain initiatives. For example, if a consensual approach had been adopted at the time of the financial crisis which gave rise to FINSAC, as a people, we would now be in a far better position to face the unprecedented economic challenges of today. The inappropriate excuse that was given by the then Opposition for 'not interfering or helping' amounted to 'you created the problem, you fix it'.

Again, when Prime Minister Patterson launched the values and attitudes initiative during the decade of the '90s, there was no cooperation from the then Opposition. In fact, it was stated by someone in the highest echelons of the Opposition that no cooperation would be forthcoming since, according to him, Patterson "did not have the moral authority" to lead such a charge.

With the necessary cooperation in such a culture changing enterprise, how much farther along the road towards a disciplined society we would now have been! It can hardly be doubted that Prime Minister Patterson has been the most accommodating leader of government that Jamaica has ever had. So that, if he did not have the moral authority to lead such a process, who then?

Further, the move towards the establishment of a social contract or social partnership was never truly embraced by the then Opposition. In fact, stakeholders met from time to time without their participation. Our journey, today, would not be as rocky as it is proving to be, had the collaboration route been adopted by them.

The outcomes from that short-sighted attitude to the conduct of public affairs now hang threa-teningly even over possible well-intentioned efforts in these times of global and national monetary trials and tribulations.

Referendum

So, the fact that we are in times of crisis should not be used as an excuse or reason for leadership to fail to pursue national goals that have long been agreed to be necessary for the development of our people.

The three main issues that have been recognised as necessary for the modernisation of our constitutional arrangements are the establishment of a republican form of government, the adoption of an up-to-date Charter of Rights and Freedoms, and de-linking from the London-based Judicial Committee of the Privy Council and subscribing to the Caribbean Court of Justice.
As far as our constitutional provisions are concerned, only the first - moving to become a republic - requires that a referendum be held. The holding of a referendum is, admittedly, a costly exercise. If, however, both political parties are agreed on the answer to be given to the question that is posed, the cost would be reduced to a minimum since campaigning would almost be non-existent.

In the case of the adoption of a new Charter of Rights, even though there are certain wrinkles that remain to be ironed out, all that is required is a two-thirds majority vote of all members of each House of Parliament.

Republican status

As far as subscribing to the Caribbean Court of Justice is concerned, there is no constitutional requirement for a referendum to be held, even though the party that forms the present government insists that such a course be taken. Again, if both parties are at one in moving in the direction of severing ties with the Privy Council, the referendum route need not be costly and, indeed, this question and that concerning the republican status could probably be put at the same time.

In any event, all that is necessary for Jamaica to subscribe fully to the Caribbean Court of Justice is a two-thirds majority vote of all the members of both Houses of Parliament, should the governing party choose to change course in this regard.

These are the kinds of efforts which serve to plant seeds of consensus, even in these unusual times, for the sustainable development of our country. Such tasks, of course, will not be easy; for these are times when people are concerned with survival and day-to- day living. Regardless, it is my view that we have no other choice than to find areas around which we may coalesce, if we are to emerge from this crisis with wholesome seeds having been planted and left to germinate in an environment of accommodation.

Three areas come immediately to mind. The first is fostering a culture of production. There are clear opportunities for local production to be enhanced. But there is an even wider and deep-rooted reason for a culture of production to be pushed. It fosters the kind of discipline that is required for the creation of the just society.

At the workplace, one cannot listen to talk radio and produce at the maximum; one cannot even produce with a passing grade with such interruption and distraction, and that is the kind of initiative that requires coaxing but which leads to cooperation, built upon an understanding that production and productivity constitute the underpinnings of personal and national development.
The second is inculcating into our people the habit of saving. One might be led to ask: how can we seek to embark upon such a project in times of financial trials and tribulation? This is precisely the time to begin, for it has to be demonstrated to our people that the habit of saving places us in a far better position to face the storms that will inevitably come upon us. The biblical story of Joseph in Egypt can go a far way in the development of part of the curriculum in schools which could assist in cementing the habit of saving as a part of the way of life of our people.

And the third opportunity comes, as I have said and will continue to project, in the form of steps that must be taken towards consensus building.

Global challenges

Jamaica has not, and could not have, escaped the prickles of the present global challenges, even though the impression had been given to the contrary by persons in high authority. After all, these are trials that the vast majority of the peoples of the planet have never encountered.

We do not wish that Jamaica should emerge from another crisis without lessons learnt. The success of nation states in tackling challenges of this sort is directly related to the approaches that are taken by the nation states themselves.

Those nation states in which bickering and proneness to confrontation constitute the guiding spirit will fail - as they usually do - to grasp the opportunities that are presented, even in times of distress. Those countries in which a consensual approach is the norm, where give and take is the natural action and reaction, in which a culture of togetherness for survival and deve-lopment is firmly set, are likely to cross the hurdles successfully.

One thing is sure, we are called to see these times as signals for searching after opportunities, personally and collectively, and searching for the silver lining.

A.J. Nicholson is opposition spokesman on justice.