December 29, 2010

Dancing away from the CCJ

Dancing away from the CCJ
Ex-St Lucia PM sees 'bleak future' for Caricom
Source: Jamaica Observer
Published: December 29, 2010

APPREHENSION over future leadership at the Georgetown-based Caribbean Community Secretariat has now grown to include the future of the Port-of-Spain-headquartered Caribbean Court of Justice (CCJ).

In the case of the latter, current talk in Jamaica and Trinidad and Tobago to dance away from accessing the CCJ in preference for establishing their own final appeal court has drawn a sharp rebuke from Dr Kenny Anthony, a former prime minister of St Lucia. He had played a key role in the formation of the CCJ when he headed the legal division of the Community Secretariat.

There will, therefore, be no formal handing over by the retired Carrington to his successor when Caricom leaders hold their scheduled first Inter-Sessional Meeting for 2011 in Grenada in February,With the surprise decision by Edwin Carrington to step down as Caricom secretary general at the end of this month after 18 years of service, Deputy Secretary General Lolila Applewaithe will begin acting as secretary general from January 1.

A new six-month chairmanship also begins next month when host for the coming Inter-Sessional Meeting in St George's, Prime Minister Tillman Thomas takes over from his Jamaican counterpart, Bruce Golding.

While he has been quite forthcoming in articulating Caricom's support for Haiti and speaking reassuringly about regional economic integration, it is Prime Minister Golding who, within recent weeks, has further contributed to deep concerns over the future of the CCJ.

As if seeking political cover under an idea initially raised in Trinidad and Tobago -- but yet to be advocated as official policy -- Prime Minister Golding is marketing an initiative for Jamaica to replace the Privy Council in London with its own final court of appeal.

With no known appetite for the CCJ, Golding and his Jamaica Labour Party (under earlier leadership as well), have long been ducking the challenge of accessing the regional court by linking such a move with the need for a national referendum

Read that proposition to mean, basically, more faith in the competence and integrity in the British law lords of the Privy Council than the fine legal minds this region has produced across member states, and with arduous efforts to ensure appointments free from the political influences so often talked about with respect to the functioning of local judiciaries.

The situation becomes even more intriguing when it is understood that a national referendum to replace the Privy Council is not really a necessity in the case of Jamaica, as it is in countries of the Organisation of Eastern Caribbean States.

Further, various British law lords associated with the Privy Council have been urging former British colonies, like ours in Caricom, to initiate arrangements to break the dependency syndrome on the Privy Council.

How sad, in contrast, to hear Caricom leaders like Golding and his Trinidadian counterpart, Prime Minister Kamla Persad-Bissessar, talking about replacing the Privy Council with their respective final appeal court.

At the same time, they steadfastly avoid encouragement to access the CCJ -- as Barbados, Guyana and Belize have done -- with a court of original jurisdiction in resolving trade disputes as well as serving as the final appellate institution of the entire community.

In St, Lucia, Dr Anthony's expression of "surprise and bewilderment" came in his response to the emerging tactics, both in Jamaica and Trinidad and Tobago, to push the idea of a final national court of appeal without any commitment to the CCJ.

Anthony, known for his robust advocacy of development of a West Indian jurisprudence, believes that if Jamaica and Trinidad and Tobago persist in spreading the notion of individual final appeal courts it would strike a "lethal blow" to the furthering of any support for the CCJ.

He is bewildered by what he views as a "disingenuous" contention to avoid political influence in the case of the CCJ. If indeed, said Anthony, the CCJ "is susceptible to political influence -- as is being claimed in Jamaica, for instance, then how much more could a Jamaican (or T&T) final appeal court be affected by political manipulations?"

The prospect, therefore, as he lamented, for realising the full benefits of creating a Caribbean Community, as envisaged by the Revised Treaty of Chaguaramas, "is becoming bleaker and bleaker if we cannot be committed to so compelling a case for region-wide endorsement of the CCJ.

December 23, 2010

PM suggests local final appeal court


Wednesday, December 22, 2010


PRIME Minister Bruce Golding yesterday raised the possibility of Jamaica establishing its own final appeal court as an option to the London-based Privy Council or the controversial Caribbean Court of Justice (CCJ), but held that his administration still believed that any decision on the matter must be put to a referendum.

"We wish to consider our own final court of appeal. We would respectfully wish that is something for which due consideration to be given," Golding said while closing debate in the Parliament on the Charter of Fundamental Rights and Freedoms which will replace Chapter III of the present Constitution.

"It is something we wish to consider in great detail and in earnest. We believe we have the judicial experience, we believe we have the maturity to do it," Golding said.

The prime minister raised the point while rejecting suggestions from the Opposition People's National Party that the matter of a final appellate court should be settled along with the passage of the Charter. According to Golding, his administration had always held that "the adoption of a final court should be put to Jamaicans in a referendum".

"Take it to the people and let the people decide," he said. Pointing out that there were members of both the Government and Opposition in favour of the CCJ as the final court, Golding said "I don't think any of us in here must ever make the mistake of presuming that there is any consensus among the people of Jamaica on this, nor must we ever seek to assume that the majority of those people will vote in a particular way".

"If what we are depending on is a consensus among us that we go to the people and say both the JLP and PNP are urging you to vote in particular way after all the years of discussion and debate on this matter, what would that say to us? That it is political mobilisation," he added.

The prime minister's insistence followed on the contribution of Opposition Leader Portia Simpson Miller who said while her party had "always been anxious to support any step to move the process forward so that all citizens of Jamaica will begin to enjoy a wider span of fundamental rights", the matter of the adoption of the CCJ as the final court should also be settled.

"It would be good if it could be settled while our prime minister is chair of Caricom," she said. "Shame and embarrassment should drive us to do everything in our power to avoid a repeat of the authorities in Britain advising us that we have overstayed our welcome. Prime Minister, the Privy Council is asking us to leave, have we no shame? We will not rest in our push for the CCJ to become our final Court of Appeal."

Simpson Miller said that if this was not done, the debate on the Charter of Rights would signify nothing.

In a response which very nearly caused the House to descend into another of its by now familiar rows, Golding insisted "it is not our understanding that if you don't get the CCJ you can't get the Charter of Rights. That is something that remains on the table of discussion. I have indicated that the views of this side are not inflexible. We agree with the Opposition that ...we have to dispense with the Privy Council. We are not yet satisfied that in doing so we must... replace it with something else whose existence is not within (our control)".


December 01, 2010

CCJ to hear first Belize appeal on Monday
by Global News Staff
Source: Caribbean News Now
Published on November 26, 2010

BELMOPAN, Belize -- The Caribbean Court of Justice (CCJ) will hear the first appeal from Belize on Monday, and it will be an appeal that has regional interest and perhaps will create Caribbean jurisprudence, since it involves misfeasance or alleged misconduct by government ministers.

The appeal was filed by two ex-ministers of government, Florencio Marin, Sr. and Joe Coye, after the current Dean Barrow administration took them to court for nearly a million dollars in damages as part of a misfeasance lawsuit.

The Belize government initiated the suit against the two former ministers for $924,056, which the attorney general claimed government had lost in the sale of 56 acres of land.

Former Chief Justice Abdul Conteh dismissed the government's case after he raised a technical question of whether the government was pursuing the right kind of claim against the former ministers.

The former chief justice ruled that the attorney general cannot file a misfeasance action in the Supreme Court, but could have pursued the route of filing a malfeasance claim for criminal sanctions in the Magistrate's Court.

The attorney general successfully appealed to the Belize Court of Appeal, which ordered that the Supreme Court hear and determine the case filed by the government.

The two former ministers then appealed to the CCJ, which has replaced the Privy Council as the final court for Belize.

The appellants’ attorneys, as well as lawyers for the respondents (the Belize government), had a pretrial hearing via teleconference.

The president of the CCJ, Michael de la Bastide, is reported in the Amandala newspaper as saying, "I think this is a matter of great public importance -- that is whether the members of a government which has replaced by another government are liable to be sued by the attorney general on behalf of the state for loss which they have allegedly caused the state by their misconduct -- or their misfeasance to use the technical word -- while they were in office."

"This is a matter that I am sure is not only of great importance (I would have thought) to the people of Belize, but indeed to the people of this region," he added.

He noted that a CCJ ruling "...would be describing what the law is finally for a least some of the countries in CARICOM" and particularly for Barbados and Guyana, which are the only other two nations to have accepted the CCJ's full appellate jurisdiction.

Four Belizean lawyers will travel to Port of Spain for Monday's hearing.

Dr Elson Kaseka and Magali Marin-Young are appearing for the ex-ministers, while Lois Young SC and senior crown counsel Nigel Hawke of Guyana will represent the attorney general of Belize.

It is understood that the entire panel will sit to hear this important appeal: President de la Bastide, Justices Jacob Wit, Desiree Bernard, Adrian Saunders and Rolston Nelson.