April 08, 2010

CCJ dismisses TCL contempt filing against Guyana

Source Stabroek staff Published : April 1, 2010 |

The Caribbean Court of Justice (CCJ) on Monday dismissed contempt proceedings against Guyana filed by Trinidad Cement Limited (TCL) and a subsidiary company, which arose last year when this country failed to reinstate the CET on extra-regional cement following an order of the court.

When its judgment was read, the CCJ also dismissed the claims for orders relating to civil contempt against Attorney General, Charles Ramson SC. The CCJ held that it had no jurisdiction to make any such finding against Guyana, but it also noted that no claim for such a finding of contempt against this country had been made either in the original or amended application of the applicants; TCL and its subsidiary, TCL Guyana Incorporated (TGI).

In its ruling, the CCJ said the oral claim against Guyana was not properly raised and so it was not entertained. However, it was noted that on January 8, 2010, almost four months after the grace period fixed by the Order had expired, Guyana reinstated the CET in respect of all non-CARICOM cement imported here. The CCJ did grant a declaration that Guyana was in breach of Article 215 of the Revised Treaty of Chaguaramas, which mandates CARICOM member states to comply with judgments of the CCJ promptly.

With respect to the claims against the Attorney General, the Court ruled a coercive order should not be made against someone who is not a party to the proceedings. It said there was no evidence that the AG here was personally responsible for the breach of the Order, or that the AG, as a non-party, was responsible in his official capacity for the reinstatement and maintenance of the CET on cement from non-CARICOM sources.

TCL had applied for leave to amend its application to include a claim for the declaration that Guyana was in breach of Article 215 and the Court granted leave after Guyana had no objections. Counsel for Guyana later resisted the claim, saying that since the amendment had only been granted after the Order of August 20, 2009 had been complied with, the question of whether Guyana was in breach of Article 215 was academic. Counsel argued that Courts were reluctant to grant declarations that served no useful purpose.
In breach

Trinidad and Tobago, in its submissions as a State Party invited to join the discussion, accepted that the Court could find a State Party to be in breach of obligations in Article 215 to comply with the Court’s judgment promptly. The CCJ found that there was ample evidence that Guyana did not comply promptly, noting that this country’s application for an extension of time for compliance with the Order was an admission that it had not complied.

In its submissions, Guyana had contended that the Order of Court was “not without some indicative element of equivocation.” Counsel for Guyana had argued that it was not the Order that re-imposed the CET. Counsel said also that the Order left Guyana free to “implement” or “complete” the CET and to “maintain” the CET “only from that date,” i.e. the date of reinstatement. But the Court said this was disingenuous, pointing to a November 13, 2009 case management conference where counsel for Guyana conceded that the country was in breach and continued to be in breach of the Order by restricting the application of the CET to imports of non-CARICOM cement ordered after October 15, 2009. The Court said its emphasis was on cement imported and CET collected after September 17, 2009 and it held that there was no ambiguity in the Order and that Guyana’s breach of it was unlawful.

The case against Guyana raised significant issues and triggered an interesting discussion at the level of the Court; it also resulted in critical submissions from Trinidad and Tobago, after an invitation was extended to state parties to make written and oral submissions on the question of civil contempt of Court issues.

What emerged from the discussions was that there is need for a protocol amending the Revised Treaty, to make clear what forms of contempt the Court can deal with and what sanctions it can impose on those whom it holds in contempt. In the interim, the Court said it will express only provisional views on such matters in the hope that “the difficulties of interpretation which emerge will be eliminated by an appropriate protocol to the Revised Treaty.”

The Court pointed to several questions which arose during its deliberations and out of the submissions canvassed before the court. It questioned what is the meaning of “contempt of court” in the context of Article 26 of the CCJ Agreement and whether the agreement give the Court jurisdiction to entertain proceedings for civil contempt. The Court also pondered, among other issues what impact, if any, does municipal legislation incorporating the CCJ Agreement have on the jurisdiction of the Court.

No inherent jurisdiction

The concept of civil contempt (disobedience of court orders) as an affront to the court is not known in the civil law and the question arose as to whether civil contempt exists in international law. The Court said that even though civil contempt was unknown to international law, states may confer that power on a tribunal by agreement. The CCJ noted in his judgment that ‘contempt of court’ is a common law concept that has no equivalent in the civil law system. It stated that even if the civil contempt of court were recognized, on the international plane it is evident that the common law concept of contempt of court must undergo some metamorphosis if it is to operate in a different setting “within the basic structure of the international community.” It said further, that in non-criminal cases the common law sanctions for contempt of court, i.e. (1) imprisonment; (2) sequestration; and (3) fines, may have to be adapted to take account of the fact that the states are the defendants and cannot be imprisoned, and that regional international courts, have no tipstaff or goals except where treaties provide so.

The CCJ continued: “When one transplants civil contempt of court into the international arena among nation states, the primary sanction is a declaratory finding of contempt or non-compliance with the Court’s order.” It noted in the result that such a declaration is similar to the one available under Article 215 of the Revised Treaty (where the obligation is to comply promptly).

However, the CCJ found that no express power to entertain contempt proceedings is granted in Article 26 of the CCJ agreement. Further, it pointed out that one could not extrapolate from the ad hoc international criminal tribunal cases that international courts have an inherent jurisdiction in civil contempt in non-criminal cases.

The CCJ panel included Justices Michael de la Bastide, who is the President of the Court, together with Justice Nelson; Justice Saunders; Justice Wit and Justice Hayton.

The applicants were represented by Dr C Denbow, SC appearing with D Denbow, D Rohlehr and K De Freitas; the respondent by Kamal Ramkarran and Trinidad and Tobago by Douglas Mendes SC along with M Quamina, E Pierre, G Jankey and S Ramhit.