November 24, 2011


By: The Hon. Mme. Justice Désirée P. Bernard, O.R., C.C.H. Judge, Caribbean Court of Justice

Over the past one and one half days we have been addressed about and have discussed the topic of Gender and the Law in all aspects - gender-based violence, gender and judging, human rights of victims and perpetrators of violence, equality in division of property, gender equality and international treaties as well as gender in the work-place, masculinity and violence, sentencing and access to justice. I asked myself what more was left to be said, and decided that perhaps a historical overview of earlier judicial colloquia may form a backdrop to all of the issues we have so far considered.

The last two decades have revealed increasing recognition of women's rights as human rights, no doubt facilitated by the ratification by an overwhelming number of member states of the United Nations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The effectiveness of any treaty or constitutional instrument depends in large measure on its application and interpretation. In this regard judges are strategically placed to determine such effectiveness by utilisation of international treaties in their judgments particularly in promoting and enhancing women's rights. It was recognised that the historic conservatism of the judiciary resulted in a reluctance to depart from tradition and time-honoured precedent, and a change of attitude was essential especially at the national level in order to advance the status of women.

In pursuance of this objective in 1994 the Commonwealth Secretariat, the Commonwealth Foundation and the Commonwealth Magistrates and Judges Association initiated a series of judicial colloquia on the utilisation of international human rights standards in domestic litigation. The result of this first colloquium held in Zimbabwe for senior judges of the African region was the adoption of the Victoria Falls Declaration of Principles for Promoting the Human Rights of Women. These Principles reflected the vital function of an independent judiciary to interpret and apply national constitutions and laws. One of the principles recognised that discrimination against women could be direct or indirect, and indirect discrimination requires particular scrutiny by the judiciary.

With regard to international human rights instruments the Victoria Falls Declaration recognised that these instruments have inspired many constitutional guarantees of fundamental rights and freedoms, and as such they should be interpreted generously, particularly those pertaining to women in relation to discrimination. Further, it is essential to promote a culture of respect for international and regional human rights norms, and particularly those affecting women which should be applied in the domestic courts of all nations and given full effect. They ought not to be considered as alien to domestic law in national courts.

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July 18, 2011

FAREWELL: Outgoing CCJ president pleased regional court has silenced critics

Sat, 16 Jul 2011 08:40:00
PORT OF SPAIN, Trinidad, CMC – Outgoing President of the Trinidad-based Caribbean Court of Justice (CCJ), Michael de la Bastide Friday he was satisfied that the regional court has gone a long way “towards persuading the doubting Thomases” and silencing critics about its performance.
Peter Richards

PORT OF SPAIN, Trinidad, CMC – Outgoing President of the Trinidad-based Caribbean Court of Justice (CCJ), Michael de la Bastide Friday he was satisfied that the regional court has gone a long way “towards persuading the doubting Thomases” and silencing critics about its performance.

Speaking at a special sitting of the court to mark his retirement, Justice de la Bastide, 74, said that six years after the court was inaugurated, “I venture to suggest the Court’s record of performance to date suggests that it is capable of assuming the dual responsibility of interpreting and applying the Revised Treaty of Chaguaramas and …shaping and developing the regional jurisprudence as the final court of appeal for the English-speaking Caribbean”.

The CCJ which has both an original and appellate jurisdication, also operates as an international tribunal interpreting the Revised Treaty of Chaguaramas that governs the Caribbean Community (CARICOM) Single Market and Economy (CSME) and the regional integration grouping.

However while most of the countries are signatories to the original jurisdiction, only Barbados, Guyana and Belize are members of the appellate jurisdiction of the court that was established in 2001 to replace the London-based Privy Council as the region’s final court.

Justice de la Bastide, the CCJ’s first president, said that with only three countries subscribing to the court’s appellate jurisdiction, “we can hardly claim complete success in winning the confidence of peoples of CARICOM.

“I think however we have gone a significant distance towards persuading the doubting Thomases and disarming our critics. This I suggest is due to three factors.

“The first is the favourable commentaries which our judgments have for the most part received. The second is the user friendly techniques and technologies which the Court has adopted to facilitate access to it and the efficient and timely disposition of cases. The third is the growing appreciation by the public in general and lawyers in particular of the measures which the CARICOM heads of government have to their credit taken to ensure the independence of the Court.”

He said these measures are to be found in the various instruments by which the CCJ and its support bodies, the Regional Judicial and Legal Services Commission (RJLSC) and the CCJ Trust Fund.

“The architecture of these bodies, their composition, powers and functions and the relationship between them, was carefully and consciously designed after consultation with important stakeholders. The primary purpose was to protect the Court from political and other extraneous influence and to give it every chance of becoming a quality court.

“The steps taken have evoked the admonition and envy of many other regional and international tribunals,” he said.

But the outgoing head of the Trinidad-based court, said he was using the opportunity of the special sitting “to warn and advise strongly against any proposal, however well intentioned, which would remove or abridge the Court’s rights in relation to its own budget in the name of correcting an alleged but illusory ‘flaw’ in the governance structure of the Court and Commission.

“In this connection I would remark in passing that I have great respect for businessmen. As they say, some of my best friends are businessmen, but the training and experience of businessmen do not equip them to identify and assess the needs of a court, far less one with two jurisdictions!

“Perhaps the point is more tellingly made in the penultimate recital in the preamble to the protocol which was agreed by the Court, the Commission and the Trustees to govern their relations,” he added.

Justice De la Bastide said before tampering “with the carefully balanced architecture of the Court and Commission, we would also do well to remember that no one has yet devised a means of insulating businessmen from political pressure”.

During his farewell speech, the outgoing CCJ president paid tribute to the people who had been instrumental in the successful operations of the court over the last six years adding that they will be fortified on September 1 by the assumption of office by the new President Sir Dennis Byron.

“They will constitute a court which in my estimation, can be relied upon to perform to a standard of excellence that can match that of any court in the Commonwealth - or indeed on this planet,” he added.

Justice de la Bastide also acknowledged the role played by the RJLSC, reiterating that “in every case, their appointment as Commissioners is free of any hint of political influence.

“ The confidence of the Heads in the independence and judgment of the Commission is attested to by the protocol to the Agreement which entrusts the Commission with the responsibility of deciding whether to extend the tenure of the President beyond the normal retirement age notwithstanding that the President is also Chairman of the Commission subject to the caveat that the Chairman shall not take part in any deliberations or decision of the Commission relating to the matter.”

Justice de la Bastide told the special sitting that he had “the good fortune as President to captain a very strong team indeed.

“That being the case, two things follow. One is that just as the captain of a weak team may escape blame for its defeat, so too the captain of a strong team must acknowledge the role of his team-mates in achieving a successful result.

“The other consequence is that the team must not be allowed to disintegrate or to deteriorate. Hence, my conviction that it would be nothing short of a tragedy for this region if the CCJ were allowed for whatever reason or by whatever means either to depart the scene altogether or to compromise the standards of excellence which it has set itself and has so far achieved.”

The outgoing CCJ president said he did not think that “future generations will easily forgive us for such a wanton waste of a unique opportunity.

“I make no apology for saying I am proud of this Court and I am comforted by the knowledge as I take my leave that it is in good hands. Naturally, I shall continue to follow its progress with great interest and attention,” he added.

June 06, 2011

What’s up with the CCJ?

SOURCE: June 4, 2011 | By KNews | Filed Under Letters

Dear Editor,
There are three pressing questions that must be asked of the Caribbean Court of Justice (CCJ): Why has it not filled its two existing vacancies?

Why is its constitutional age limit of 70 years not being enforced? And why it has never had an East Indian Justice on the court?

Collectively, these three questions represent a worrying trend that may seriously undermine the credibility of the court if they are not addressed forthwith.

The Caribbean Court of Justice (CCJ) is the Caribbean regional judicial tribunal that was established on 14 February 2001. There were 10 initial members: Antigua & Barbuda; Barbados; Belize; Grenada; Guyana; Jamaica; St. Kitts & Nevis; St. Lucia; Suriname; and Trinidad & Tobago. Two other member states, Dominica and St. Vincent & The Grenadines, joined on 15 February 2003, bringing the total members to 12. he CCJ came into force on 23 July 2003, and the CCJ was inaugurated on 16 April 2005 in Port of Spain, Trinidad & Tobago.

Currently, two of the judicial nine seats are vacant. Why is this entity that purports to represent the CARICOM region unable to seat a full court?

Are these ongoing vacancies symptomatic of the low esteem the legal profession has for this body? It is worthwhile getting an answer as to what’s up with the CCJ.

Are the constitution age limits being ignored given the apparent inability to attract a full slate of judges?

My understanding is that there is an age limit of 70 and two of the current Justices, Michael de la Bastide at 74 and Desiree Bernard at 72, are now beyond that age. Is the highest court in the region ignoring its own rules? What’s up with the CCJ?

How come there has never been an East Indian Justice on the Court? Given the East Indian majority in population in Guyana and Trinidad and Tobago, and the glorious legal heritage that east Indian have added to the profession via the Luckhoos, Persauds and Singhs it does beg the question why no East Indian? West Indies cricket has suffered from racial discrimination through its history which is in no small part responsible for the sport being on its death bed. Is its legal system doing the same? It would be nice to get an honest answer.

Vijay P. Kumar

April 03, 2011

At the root of Caribbean disunity


Published by the Jamaica Observer

Sunday, April 03, 2011

UNLESS you have been too focused on the unseemly brawl between attorney KD Knight and Prime Minister Bruce Golding at the Dudus/Manatt enquiry you know that there has been sustained national outcry since Shanique Myrie revealed to this newspaper that she was the victim of an alleged cavity search that felt like a sexual assault by a female immigration official in Barbados.

The incident reportedly occurred on March 14. She also said the Immigration officer made several derogatory remarks about Jamaicans. She was refused permission to land and was returned to Jamaica on the next available flight.

SAMUDA… it makes no sense for Caribbean countries to accept and indeed to court investors from all over the world, but to resent those who take up such offers who come from elsewhere within the region

Barbadian Foreign Affairs Minister Senator Maxine McClean immediately dismissed Ms Myrie's allegations.

"There is absolutely no truth to a story carried in a Jamaican newspaper on Thursday, March 24, that a female citizen of that country was body-searched by Immigration officers on arrival at the Grantley Adams International Airport." The minister accepted a report from the chief immigration officer, after "extensive investigations" that "the claims were baseless".

By Thursday, as the controversy got extensive media and political attention across the region, the Jamaican Government despatched a team of officials to Barbados to dig deeper into the issue.

Meanwhile, the Barbadian minister appeared to be dialling back her initial assertions, suggesting that the matter must be thoroughly and calmly investigated to determine what really happened and what sanctions would be applied to anyone found to be have committed an illegal offence.

What we know at this stage is that the story told by Ms Myrie to the Observer and the story told by Barbadian Immigration officials to the foreign minister cannot both be true.

Though I am prepared to suspend final judgement until all the facts are in, it is not credible for Ms Myrie to concoct such a horrifying and humiliating story about herself. It is not the kind of notoriety that any rational person would inflict on themselves.

The specific issue is not beyond reasonable resolution. The allegations outlined by Ms Myrie are illegal under Barbadian law and I do not believe it's beyond the Royal Barbados Police to get to the truth and let the law take its course. The Jamaican woman has, quite rightly, retained counsel to protect her interests and her human rights.

But as the investigation runs its course, the controversy has again raised fundamental questions about commitment to the regional integration movement which generations of political leaders have been crafting, with limited success, for more than four decades.

Reflection of deep suspicions and mistrust

Was this an isolated incident or a reflection of deeper rifts and mistrust about the practical implementation of the various protocols and agreements about the free movement of people, capital, and goods and services?

We know that Caricom suffers from periodic skirmishes ranging from trade -- the struggle to get Jamaican patties into Trinidad is a case in point — through the upkeep and utilisation of the Caribbean Court of Justice, to immigration, as proved by the Myrie case, and recitations of story after story about mistreatment in Barbados and Trinidad and Tobago of nationals from several Caricom countries.

Addressing Parliament last Wednesday, Prime Minister Golding said the most recent Caricom heads of Government meeting heard complaints from the St Vincent prime minister that nationals from his country were mistreated when they arrived in Barbados. At a meeting prior to that, a similar complaint was made by the president of Guyana.

"There are issues that we have not addressed. The deputy prime minister will confirm that at almost every Heads of Government meeting the matter is raised," Mr Golding remarked in his statement to Parliament.

In its editorial comment on the issue Thursday, The Trinidad Express acknowledged that the twin-island republic has also been fingered in the mistreatment of Jamaicans, stating that, "Jamaica has also listed this country's airports among those in the region where its citizens have charged mistreatment by officials. This is in spite of the fact that Caricom purports to be moving towards free travel between member states."

The so-called Caricom passport is honoured more in the breach than the observance and persons in possession of valid Caricom skill certificates, which identify the holder as persons eligible to move freely throughout the region, say the document is routinely ignored by border officials.

In some instances, Immigration officials do not have the authority to honour these documents because their governments did not bother to pass the necessary enabling legislation that would give the power of law to the signed agreements.

Another underlying issue is the differences in economic development. People in Trinidad and Tobago and Barbados, the two Caricom members with the most robust economies, often express concerns about 'foreigners' coming in to 'take' what rightly belongs to 'nationals'. Border officials probably reflect this mood when they encounter some Caricom nationals at points of entry.

In addition, the gap between what regional treaties say and what occurs in national practice is explained by the fact that there is no supra-national body to enforce the agreements because individual states and people have shown no inclination to give up their sovereignty, not even in part.

This is not an easy issue because no country will give up its right to make critical decisions about matters like security, border control and development strategy unless the alternative is demonstrably better than holding on to the illusion of sovereignty.

The European Union is often dangled as an example of a regional integration movement that works; but this did not happen overnight. And they still have holdouts. For example, the British have stayed out of the common Euro currency, holding on to the pound as their national currency.

In our region the benefits of integration have been slow in coming. Big inter-regional projects tend to falter. A case in point: Early in the 1970s, Jamaica's Michael Manley, Guyana's Forbes Burnham and Trinidad and Tobago's Eric Williams talked boldly and hopefully about a regional aluminium smelter using alumina from Jamaica and Guyana and energy from Trinidad. Nothing happened.

But while state-supported projects have faltered, business people at all levels are up and down the region investing and working even in the face of bureaucratic humbug. Big firms like GraceKennedy, Sagicor, and Trinidad Cement are all over the place.

This past week Karl Samuda, minister of industry, investment and commerce, was in Trinidad and Tobago wooing investors.

According to The Trinidad Express, Samuda said that "it makes no sense for Caribbean countries to accept and indeed to court investors from all over the world, but to resent those who take up such offers who come from elsewhere within the region".

At another end of the spectrum, Jamaican entertainers pull big crowds even in places where authorities show their disapproval of some of the lyrical content and on-stage profanities. And some don't get past the border.

It seems, therefore, that there is a real desire for mutually beneficial exchanges at both corporate and individual levels. But this has to be done in a context of mutual respect.

Skirmishes and squabbles are part of doing business; abuse and humiliation are not. For the most part the region is joined by commonalities of culture, language and the Caribbean Sea. The divisiveness that too often prevails over co-operation will, in all probability, disappear with time and force of circumstances. We may become more accommodating to one another as others far away become less accommodating to us.


March 17, 2011

Leader of a UN criminal tribunal for Rwanda named next chief of Caribbean Court of Justice

The Trinidad-based regional appeals body has issued a statement saying that St. Kitts native Dennis Byron will soon succeed retiring president Michael de la Bastide. The court said it would announce Byron's starting date later.

Byron is president of the U.N. International Criminal Tribunal for Rwanda and a former chief justice of the Eastern Caribbean appeals court.

The Caribbean Court of Justice is the highest court of appeal for several former British colonies in the Caribbean. So far, it has replaced the colonial-era British Privy Council in Barbados, Belize and Guyana.

Byron's appointment was announced Wednesday.

January 28, 2011

Jamaica’s position on CCJ scorned

Jamaica’s position on CCJ scorned
Published: Friday, January 28, 2011

ST GEORGE’S, Grenada (CMC) – Prime Minister Tillman Thomas has scoffed at a suggestion by the Government of Jamaica to opt for its own final Court of Appeal instead of going the route of the Caribbean Court Of Justice (CCJ).

Thomas, who is the current chairman of Caricom, said Jamaica’s argument that there would be political interference in the CCJ did not make sense.

“What I find a bit strange about Jamaica’s position is that the argument against the CCJ is that there would be political interference. Domestically, it makes it easier for political interference,” he said.

Late last year a debate in Jamaica’s Parliament, over whether to sever ties with the British Privy Council as its final Court of Appeal, revealed that the government while agreeing to move away from the Privy Council, was proffering a Jamaica Court of Appeal over the Caribbean Court of Justice (CCJ).

This idea was sharply shot down by the opposition which called for a referendum on the issue.

Thomas said there is a need for more collective confidence in the ability of regional judges to hand down unbiased judgments.

“We in the region have competent and capable judges to man our courts,” he said.

“As a matter of fact, one of the best Courts of Appeal we have experienced in the region is the Court of Appeal in Grenada during the revolution and the revolution had its problems; but that Court of Appeal which was in Grenada was one of the most distinguished and outstanding courts in the region.”

One of the judges who served in that court is Sir Nicholas Liverpool, Dominica’s President. He served as Justice of Appeal in the Grenada Court of Appeal from 1979 to 1991.

Grenada is a signatory to the CCJ and Thomas said he believes it’s just a matter of time before the country takes steps to adopt it as its final appellate court

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