CCJ Decision

The high cost of preventing employees from unionising

Source: International Law Office Published Nov. 7, 2012

In October 2000 the Trade Unions and Employers' Organisations (Registration, Recognition and Status) Act came into force in Belize. The act is intended to provide protection to both employers and employees to freely associate and form employees' and employers' organisations to protect their respective rights. While the act is designed to protect these rights, in a society such as Belize, where employers' organisations are uncommon, little if any benefit is derived by employers from the act. On the contrary, an employee's constitutional right to freely associate is entrenched in the act, thereby creating a new cause of action against an employer that violates an employee's right to unionise.

The Supreme Court is given extensive powers to redress the violation of an employee's rights under the act by making such orders as it considers just and equitable. Redress may include an order for reinstatement of an employee, restoration of benefits and other advantages and payment of compensation. The list is by no means exhaustive; but unlike similar laws in other jurisdictions, the act provides no guidance as to how the Supreme Court should exercise its discretion in awarding compensation.

The first claim made under the act was filed by six former employees of Mayan King Limited. The claimants were banana workers on Mayan King's banana farms. According to them, they were spearheading the movement to unionise the workers at Mayan King and were dismissed as a result of their union activities.

The Supreme Court determined that the termination of the claimants constituted union busting and that they were each entitled to BZ$70,000 as compensation for violation of their respective constitutional rights. On appeal by Mayan King, the Court of Appeal agreed that the claim was in private law against an employer and so there was no violation of the claimants' constitutional rights. However, the Court of Appeal stated that the act created a new cause of action and awarded one year's salary and BZ$30,000 to each claimant as compensation for injury to their pride and feelings.

Mayan King appealed to the Caribbean Court of Justice and on July 6 2012 the court delivered its landmark decision. The Caribbean Court of Justice upheld the trial judge's finding that the claimants' termination constituted union busting. However, it considered that an award of BZ$30,000 to each claimant together with one year's salary was high, particularly since the claim was in private law. The Caribbean Court of Justice reduced the award to BZ$15,000 for each claimant. The court stated that:

"The aim of the award cannot be to enrich unjustly or arbitrarily a claimant with a bountiful windfall. Further, the degree of reprehensibility of the defendant's misconduct is to be considered more for its impact on the victim bearing in mind that the function of the civil law is ordinarily not to punish the defendant."

The BZ$15,000 award was described by the Caribbean Court of Justice as an award for distress and inconvenience. According to the court, the:

"dismissals entailed much more than ending an employment relationship. The dismissals were accompanied by the immediate expulsion of the claimants and their families from their homes... these dismissals justify awards to the Claimants for distress and inconvenience."

It appears, therefore, that the award was based on the particular facts of the case, and that such an award will not be merited in every case where a violation is established.

It was noted that the claimants' evidence to assess pecuniary loss was sparse and unsatisfactory. The losses should have been established by clear evidence, and in the absence of concrete testimony it was not open to the Court of Appeal to infer loss. The Caribbean Court of Justice took into account that the employees were paid fortnightly and so were entitled to two weeks' notice of their termination. A further two weeks was added since, on the facts of the case, the dismissals also entailed the claimants' finding new housing arrangements. The award of one year's compensation was therefore reduced to one month's wages. One claimant had adduced evidence that he was unemployed for a period of three months and so his compensation was increased to three months' wages.

While the decision of the Caribbean Court of Justice provides some guidance as to how the Supreme Court should in future determine compensation for violation of an employee's rights under the act, it is important to note that the compensation awarded to the claimants was largely affected by the particular facts of the case. This was not a case of simple dismissal, but had the added element of requiring the claimants to leave their homes on short notice. While the claimants did not in fact leave until thee months after their employment had been terminated, the Caribbean Court of Justice emphasised that the nature of the dismissal required them to find alternative accommodation within 24 hours and considered that this must have occasioned some mental distress

T&T still to abolish appeals to Privy Council

By Stabroek editor 

Published October 30, 2012

Trinidad and Tobago is yet to abolish criminal appeals to the Privy Council which is to be replaced by the Caribbean Court of Justice (CCJ). This despite Prime Minister Kamla Persad-Bissessar saying last April in Parliament that the Government will table legislation to make the historic change.

To date however, the People’s Partnership Government is still working out how to access the appellate system, said Sir Dennis Byron, president of the CCJ yesterday. “I wouldn’t say that either Trinidad or Jamaica is having any problems with the CCJ. They are working out internally the method by which they would access our appellate jurisdiction,” Byron said.

He said all Caricom countries had signed an agreement giving the green light for the CCJ to become the final appeal court. Byron was speaking at the ceremony for the signing of a Memorandum Of Understanding between the Caribbean Conference of Heads of Judiciary, the CCJ and the United States’ National Center for State Courts (NCSC).

The MOU will facilitate co-operation in a mutual effort to implement sector reform and enhance the administration of justice for the Caribbean region. The objective also is to increase the capacity of the CCJ to design and implement justice-reform programmes through shared vision, mentorship, knowledge transfer and expertise provided by the NCSC.

Byron said there have been challenges and expressed confidence these will be dealt with successfully. “But in each country there have been, from time to time, various internal hurdles that they have had to overcome. It is my understanding that they have been addressed in different ways in each country.

The countries that came on first were Guyana, Barbados and Belize and in each of the other countries, and there have been various releases from the various  government authorities indicating steps they are taking, we anticipate these steps would be addressed in a most reasonable fashion,” Byron said.

He said once these steps had been worked out, it would pave the way for the respective countries to be part of the appellate court. Asked what was the time frame for such matters to be ironed out, Byron said, “My time frame is not the best one to go by. My time frame is immediate.

“So if I had the ability to make the decision I would do it immediately. But of course I don’t and one has to allow the process to work in the best way in the relevant country.”

---

Article printed from Starbroek News: http://www.stabroeknews.com

URL to article: http://www.stabroeknews.com/2012/news/breaking-news/10/30/tt-still-to-abolish-appeals-to-privy-council/

CCJ aims to strengthen justice reform in the region

Source:http://go-jamaica.com/news/read_article.php?id=40813

2012-10-28 11:31:27 

The Caribbean Court of Justice (CCJ) is to sign a Memorandum of Understanding with the United States-based National Centre for State Courts (NCSC).

The MOU, which is scheduled to be signed during a special ceremony in Trinidad and Tobago tomorrow, forms part of the CCJ’s efforts to improve the administration of justice in the Caribbean.

In a statement released yesterday, the CCJ said the MOU will facilitate cooperation in a mutual effort to implement justice sector reforms and enhance the administration of justice for the Caribbean region.

It says the agreement will also allow for cooperation with the NCSC to increase the capacity of the CCJ to design and implement justice reform programmes.

The NCSC has provided technical assistance, training and technology to improve the justice system across the United States and more than 30 countries throughout the Middle East, Asia and Eastern Europe.

Caribbean’s PJ Patterson on EPA:

Caribbean’s PJ Patterson on EPA: Region’s unity was its ‘greatest weapon’Published: Thursday, October 4, 2012 Source : Guardian TT

It seems that some nations are more equal than others. A case of David versus Goliath. There is the European Union, one of the world’s largest economic and geo-political blocs, and, on the other hand, Caricom, one of the world’s smallest blocs. The European nations, former colonial masters of the Caribbean, walked away with most of the benefits in the Economic Partnership Agreement (EPA) that was signed in 2008, says PJ (Percival Noel James) Patterson, former prime minister of Jamaica. “The concept of proportionality has been thrown out the window. Indeed, some are more equal than others. Inequality is evident, no visas are required for entry in most of our countries, while we need a Schengen Visa or United Kingdom permit to step foot on European soil,” he said. The Schengen Visa has made travelling between its 25 member countries (22 European Union states and three non-EU members) much easier and less bureaucratic. Travelling on a Schengen Visa means that the visa holder can travel to any (or all) member countries using one single visa, in so doing avoiding the hassle and expense of obtaining individual visas for each country.

The EPA agreement, signed between the EU and Caricom and the Dominican Republic in 2008, saw the Europeans arguing it would gradually open both markets to each other which would aid the Caribbean’s development. Patterson, one of the region’s foremost diplomats and political leaders, tore into the imbalance in the relationship between the EU and the Caribbean region. He spared no words as he painted a picture of the EU as a colonial power unwilling to let go of its former colonies. He attacked the late Robin Cook, the UK’s former foreign secretary, for lacking diplomatic skills and accused the United States’ George Bush administration of taking unilateral action across the globe. He said the “greatest weapon” that the African, Pacific and Caribbean (ACP) countries had was unity in negotiating as a single group. “No matter the nature and extent of the particular interest of each state or group, we realised there was a commonality of interests. Unless we pursued these negotiations as a single group, the result would be an abject failure. Rival empires had been built on the axis of divide and rule - our unity was our greatest strength,” he said. Patterson accused the European powers of a ruthless policy of divide and conquer, with the ultimate objective to “defeat” developing nations one by one.

“Even the least sceptical person, or the most difficult juror to persuade, must by now have been convinced that the determination of the EU to create regional economic partnership agreement was for one purpose only: that is, to dismantle the formidable arsenal of the ACP combined, to fragment its collective power and then defeat us one by one. To repeat once again how this exposed the Caribbean to the EPA would now be a  quixotic adventure.” Patterson was speaking on international trade at the Caribbean Court of Justice (CCJ) International Law Seminar, held at the Hall of Justice, Port-of-Spain, on September 27. Patterson noted that other countries in the ACP group are also negotiating EPAs, but none has been completed like the Caricom region. “None of the other six ACP groups, each negotiating separately, has yet concluded a comprehensive EPA to accord with the EU’s allotted timeframe. It seems to go well beyond the realms of trade and economic relations to encompass issues of shrewd sovereignty and areas of supranational governance,” he said.

He painted a gloomy picture, saying that “storm clouds” are beginning to appear four years after the EPA has been signed.

“There is the rate and pace of tariff adjustments in the face of existing budgetary requirements and tight fiscal constraints. Also, the absence of funding obligations as part of the EPA, and these reflected in the European Development Fund (EDF) as part of the Cotonou Agreement. Then you have an area of great potential, which is services, but who will qualify for access from the Caribbean?” he asked. To deal with these issues, Patterson recommended the region develop the technical skills.

“What becomes evident is that within Cariforum in the Caribbean Community itself and also in the member states, we will have to create the range of skills necessary to engage in the proper interpretation of the EPA, the enforcement of the provisions, the settling of disputes, which are bound to arise, and the appearing before the tribunals and courts which have the appropriate jurisdiction.”

WTO and the Caribbean

Patterson said the statistics show a “fair involvement” of Caricom countries in the World Trade Organisation (WTO) dispute settlement system. “They have been involved as both complainants and respondents. The frequent challenges in the WTO to the EC’s regime of non-reciprocal preferences and internal challenges to the Common Agricultural Policy have been bitter pills to the Caribbean. Caricom countries have to put themselves in the best position to seek due protection of their vital interests,” he said. The region must be well prepared for negotiating at these international fora. “It provides another reason why Caricom must ensure that their delegations, whether in Geneva or in Brussels, include not only economists or social scientists, but also lawyers with specialist training in international law and international trade.

Obviously, the same should apply to the manning of the relevant ministries and departments at the domestic level.” He spoke of glaring inconsistencies of the execution of national trade policies and the filing of WTO complaints. “Huge agricultural subsidies, which hurt our local farmers because heavily subsidised agricultural products, can be imported more cheaply. Then there is the threat to the Caribbean rum industry by virtue of huge subsidies on rum from Puerto Rico and the US Virgin islands. “Also, there is the failure to settle with Antigua and Barbuda for violating the General Agreement of Trade in Services by refusing to allow Internet gambling into the US, said Patterson, asking, “Does this evidence point to fair and unequal treatment?”

Caribbean and international law

Patterson advised small Caribbean states to do everything to make its contribution to international law, despite their size.

“For small states lacking military power, like those in the Caribbean, observance of the rule of law is an imperative. We must put our faith in international law to uphold right over might and law over force. We must do everything in our power to ensure that we contribute in a meaningful way to the content of international law,” he said. In highlighting how unfair the international economic and legal system is, Patterson quoted UK’s former foreign secretary Robin Cook on the International Criminal Court (ICC): “If I may so say, this is not a court set up to book prime ministers of the UK and or presidents of the USA.”

Patterson also said: “The Bush administration demanded that signatories to the ICC must expressly consent to the exemption of US citizens from prosecution and trial before the court or suffer the withdrawal of aid supports for defence and security programmes.” Patterson said this clearly implied is an acceptance that the ICC and similar tribunals would exempt leaders of powerful states, no matter “the illegality of their acts,” while those who belong to “lesser breeds” of the law would be subject to punishment.

http://www.guardian.co.tt/business-guardian/2012-10-04/caribbean’s-pj-patterson-epa-region’s-unity-was-its-‘greatest-weapon’?qt-realestate_classfieds=0

October 4, 2012

The Caribbean Court of Justice has exemplified a lucidity of logic and learning 

September 12, 2012  - Stabroek News

Dear Editor,

In Saturday’s Stabroek News (September 8) a Jamaican attorney-at-law, Hugh Wildman, reportedly asserted, inter alia, that the quality of judgements of the Privy Council is “far superior” to those emanating from our Caribbean Court of Justice and in purported proof of his conclusion, he cited an unspecified case in Guyana. His credentials seem to be anchored in his practice of unverified ubiquity but, given the notion of contemporary democracy in vogue, a more discerning profession ought to accord his view the merit or otherwise it deserves.

After more than half of a century of gestation the CCJ finally entered this regional space in response to the neo-colonial global construct which continued to bedevil the Caribbean after their respective political Independence ceremonies. Guyana had taken the first step in this direction by abolishing appeals to the Privy Council since 1970. Contemporary wisdom prompted the vision that Independence dictated that Caribbean states ought to compete collectively from a position of parallel or alternative decision-making in every sphere of our statehood.

The CCJ’s rationale and leitmotif were to create and foster an endogenous jurisprudence without peeling away our vestigial linkages with our common law heritage. Out of this well shall be drawn the judicial wisdom but in a more relevant localised form, palatably appealing to the intended or affected consumer. There have been many very perceptive observations over the last decade, or maybe longer, from their Lordships of the Privy Council which supported the establishment of a regional court of last resort.

Guyana, and I had the honour and privilege of representing its interests on this front until I demitted office on December 6, 2011, submitted to both the original and appellate jurisdictions of the CCJ from its incarnation and, speaking for myself, this apex court has exemplified a lucidity of logic and learning, together with a didactic dispassion in its judgements, notwithstanding the profession’s nervous nuances in terms of political influence in its formative years. We should do well to remind ourselves that Justice Michael De La Bastide was a Privy Councillor prior to his appointment as the first President of this court which no doubt has its imperfections, such as its lack of diversity. Speaking from my perspective as a former Justice of Appeal in Guyana, their decisions can withstand the scrutiny of the most forensic analysis humanly possible. Confucius is credited with the aphorism that a journey of a thousand miles begins with the first step. I might add “but it is the will to do so that matters more.” To this extent, Marley’s incantations about mental slavery seem to have eluded the psyche of his compatriot. 

I conclude by asking Mr Wildman this question: How would a citizen of the United Kingdom react to the adoption of a Caribbean Court as their final court?

Yours faithfully,
Justice Charles R Ramson SC
Retired Attorney General and 
Minister of Legal Affairs

Adopt the CCJ

By COREY CONNELLY Monday, September 3 2012

Source: http://www.newsday.co.tt/news/0,165719.html

IN A veiled reference to Jamaica’s tussle over the implementation of the Caribbean Court of Justice (CCJ), Prime Minister Kamla Persad-Bissessar on Saturday urged her Jamaican counterpart Portia Simpson-Miller to adopt the CCJ as that country’s final Court of Appeal.

She issued the challenge while addressing guests at the Prime Minister’s Golden Jubilee Gala at the Diplomatic Centre in St Ann’s.

Recalling the historical antecedents which shaped much of the Caribbean region, Persad- Bissessar said, “I know that Jamaica has come through a similar pathway of history as other lands...that is to say, we have come out of slavery, indentureship, emancipation and independence. “But madame Prime Minister of Jamaica, Trinidad and Tobago has gone one step further and so I continue to urge you to take that next step from still being within the Westminster monarchy and to create your own Republic of an independent Jamaica.”

Jamaica is one of several Caribbean islands that has not yet accepted the CCJ as its final Court of Appeal.

However, the lower house of parliament in Jamaica is set to debate whether the CCJ should be that country’s final Court of Appeal. The legislation is said to require a two-thirds (opposition support) majority for passage.

Simpson-Miller, whose country this year also celebrated 50 years of Independence on August 6, arrived in TT days ago to participate in the Jubilee celebrations. Simpson-Miller, who attended Saturday night’s gala and Persad-Bissessar, are the only female prime ministers in the region.

In her address, Persad-Bissessar said TT has led by example over the past 50 years. “We are a nation which takes its flag and anthem very seriously, and certainly one that prides itself of racial diversity,” she said.

“We continue to stand as an example to the world of how harmony can be achieved by people of different origins.” The PM also said the resilence of the country’s citizens was one of its most distinguishing traits.

She said, “In the face of defeat, we still praise effort. In the face of adversity, we still celebrate the chance to learn and grow. In the face of great change, we still embrace the opportunity to advance.”

And while TT continues to revel in its achievements, Persad-Bissessar also urged citizens to celebrate the strong bond with their Caribbean neighbours. She said the country remains committed to the stability, progress, and advancement of the region.

Persad-Bissessar, who also proposed a toast to TT’s 50th Anniversary of Independence, paid tribute to those who put the country on a development path.

Alluding to Dr Eric Williams, the country’s first prime minister, Rudranath Capildeo the first leader of the Opposition, and former President Sir Ellis Clarke, the main architect of the Independence Constitution, she told guests, “They were the founding fathers of this independent land that we all now share together, and so I ask you, let us take hope, courage, and inspiration to follow in their footsteps and to take up the mantle given to their mandate, which is for us to forever continue to advance Trinidad and Tobago to be the best that we can, in every way that we can, hand in hand, and side by side. “And whilst we do that for our beloved nation, let us remember our Caribbean family, because when one rises, together we will also rise together,” she added.

JLP's CCJ position is constant - News - Jamaica Gleaner - Sunday | July 8, 2012

JLP's CCJ position is constant - News - Jamaica Gleaner - Sunday | July 8, 2012

The Jamaica Labour Party (JLP) has high regard for The Gleaner and consistently takes careful note of the editorial opinions expressed. It is then with surprise that we read The Gleaner's editorial of June 29 titled 'JLP needs clear position on CCJ'.

It reads, in part: "... Time for Andrew Holness to end his party's cat-and-mouse game on Jamaica's accession to the criminal and civil jurisdictions of the Caribbean Court of Justice (CCJ)." And continues, "If the Jamaica Labour Party doesn't want the court, it must assert its position with clarity, including saying why. If, however, it supports the court, but genuinely believes that the final decision on it ought to rest with the Jamaican people in a referendum, we expect to hear a commitment from the JLP to campaign for a 'yes' vote in a plebiscite."

A cursory look at The Gleaner archives will reveal the consistency of the JLP's position on the CCJ through Edward Seaga, Bruce Golding and now Andrew Holness and myself.

The evidence shows that on December 4, 2000, The Gleaner published an article titled 'Forget the CCJ - Seaga urges Gov't to focus on economy, education, crime'. In that said article, Mr Seaga, who was leader of the JLP and the Opposition at the time, stated:

"Is the establishment of a Caribbean Court an issue deliberately promoted by Government to sidetrack our attention from the real issues of crime, education and the economy which are real priorities?" he asked. He called on the Government to "let the people speak in a referendum now".

He continued: "We do not want a court which can be influenced by Mr (P.J.) Patterson, but one that can be influenced only by justice." He added that it was a "reflection itself of the injustice of which Mr Patterson's Government is capable that he will not allow the people to voice their own position on this vital issue in a referendum".

This position is no different from that of the current JLP leader, Andrew Holness, who in his contribution to the Budget Debate stated: "Right now, the only focus of any government is to get our debt down, get our revenues up, get growth going, provide education for our people; that is the sole focus now of any government."

That could be considered JLP position number one: focus on the economy.

Mr Seaga's position was further restated in his response to the PNP Government's resistance to the idea of a referendum. In a Gleaner story on May 18, 2003 titled 'Allow the people to decide - Seaga', Mr Seaga was quoted as saying:

"In my term as prime minister, I took many decisions that were unfavourable to my party but which I knew were in the best interest ... were important to the survival of the country," Mr Seaga said. "It should not be that the prime minister is afraid to lose out in a referendum ... . It should be about giving the people the opportunity to choose (their) final court of appeal ... to allow them to choose the type of justice they want ... . This is a fundamental right."

So the JLP's position that the court must only be established as Jamaica's final appellate court through referendum is not new.

This position was not only articulated by Mr Seaga but also by Mr Golding. In another Gleaner story on May 13, 2003 titled 'JLP to vote for CCJ if referendum is allowed, says Golding', Mr Golding stated in a context that the JLP will support the CCJ if the Patterson Government at the time committed to calling a referendum on the matter:

Not holding back

"Give us the undertaking that if we vote with you, you will do a referendum," Mr Golding challenged. "I would never want to give you the impression that we are holding back. I can speak for this side ... . I think I can speak for the entire Jamaica Labour Party (JLP) ... that we will support you, if, before the court convenes its first sitting, the people's view will be sought."

This same position has been clearly articulated by me on occasions too numerous to mention.

In 2005, Mr Golding went even further. The Gleaner of July 4 reported that: "Speaking at a press conference in St Lucia following a meeting between CARICOM prime ministers and opposition leaders, Golding used the platform to call for referendums in CARICOM member states to decide the fates of the Caribbean Court of Justice (CCJ) as the final appellate court and the CARICOM Single Market and Economy (CSME)."

Mr Golding, while prime minister, maintained the referendum position throughout his Government's tenure.

Over the last decade, the JLP's position has been that in order for the CCJ to have full protection under the Constitution of Jamaica, a mere two-thirds majority is not enough.

This position is not new and was also proffered by current leader of government business in the Senate and former attorney general and justice minister, A.J. Nicholson. In The Gleaner of January 29, 2000, in a news story titled 'Gov't would go for CCJ entrenchment':

"It may be eminently desirable that the court be entrenched. If all parties and stakeholders agree on that question, then the Constitution requires that a referendum be held. This is so because the amendment section of the Constitution (Section 49) would itself have to be amended and it can be amended only by a process of referendum."

Not only does Mr Nicholson, in his former self, agree with the JLP's position, but he also explains why the JLP's position is legally sound and preferable. It is interesting that in Senator Nicholson's eyes, that position is no longer "eminently desirable".

referendum

Section 49 of the Jamaica Constitution would afford the CCJ the protection it needs from the whims and fancies of any future prime minister or government. Additionally, abolishing the right of a person to seek appeals to the  Privy Council should not be left to the determination of politicians, but to the people.

A referendum on the CCJ would not only give the people a chance to choose but would concurrently present the opportunity for all stakeholders to educate their various constituencies on the issues related to the establishment of the court for Jamaica. This would be a mass education effort that will benefit the nation as a whole and create greater awareness of the justice system not only at the local level but also at the appellate level.

It is sad that the PNP, a party that advocates people power, would evolve to the position that the people should not be given the ultimate power of choosing their way.

The JLP's position is by no means a comment on Caribbean jurisprudence. We are not in support of the CCJ being used as a political mirage to hide the real issues that face the nation. As a nation we must focus on the grave challenges that face us.

We say if the nation wants the CCJ as its final appellate court, let the nation decide in a referendum. Anything less would be a comment on the confidence we, as a nation, have in our democracy.

Delroy Chuck is opposition spokesperson on national security and justice. Email feedback to columns@gleanerjm.com and delchuck@yahoo.com.

Jamaica Must Get On Board CCJ - In Focus - Jamaica Gleaner - Sunday | July 1, 2012

Jamaica Must Get On Board CCJ - In Focus - Jamaica Gleaner - Sunday | July 1, 2012

Byron Buckley, Contributor

WHILE THE Government and Opposition wrangle over Jamaica adopting the Caribbean Court of Justice (CCJ) as the country's final appellate court, the regional tribunal has been quietly impacting the lives of ordinary citizens across the  Caribbean Community (CARICOM).

The CCJ has been hearing appeal cases in Guyana, Belize and Barbados, which have chosen it as their final appellate court. In addition to appeal cases, the CCJ has also heard trade or treaty-related cases under the CARICOM Single Market and Economy (CSME) agreement. One such case relates to Shanique Myrie, the Jamaican woman who allegedly endured a humiliating body search by Barbadian border-control personnel last year.

How this case is handled by the Trinidad-based CCJ, could help in removing doubts in the minds of many Jamaicans, about its competence and suitability to also function as the country's final appellate court. This role is now being performed by the United Kingdom-based Privy Council .

But Government and Opposition are in disagreement about the means by which Jamaica should replace the Privy Council with the CCJ. The Simpson Miller administration wants to go this route, which requires the consent of two-thirds of the membership in the Lower and Upper Houses of Parliament.

IS A REFERENDUM NECESSARY?

On the other hand, the Andrew Holness-led Opposition contends that the decision to replace the Privy Council with the CCJ should go ahead only through the people's assent in a referendum.

However, abolishing appeals to the Privy Council does not require a plebiscite under the Jamaican Constitution, as the Privy Council is not a deeply entrenched provision. The Opposition's contention seems to surround whether there is public confidence in the CCJ as a suitable replacement for the British tribunal.

Whatever views have been proferred, it appears that the Opposition has no confidence in the CCJ and would likely campaign against it in a referendum. This runs the risk of politicising the issue, prompting people to vote along party lines.

However, Delroy Chuck, the shadow justice minister, told this newspaper last Thursday that the Opposition has no reservations against the CCJ but wants public approval in a referendum. But those comments come into conflict with Holness' recent call to defer talk of the CCJ and to focus, instead, on improving court infrastructure and reducing case backlogs in Jamaica.

Of course, there are lingering doubts among some Jamaicans as to whether the CCJ can deliver a brand of justice that is fair and immune to political interference. But the justices of the CCJ are distinguished and professional jurists, not political apologists. The court's performance, since its establisment in April 2005, should serve to increase the confidence of doubters in Jamaica.

Indeed, the Shanique Myrie case provides a perfect opportunity for all Jamaicans to observe the regional court at work and determine its competence. The case is unique in the sense that the CCJ is reviewing it on the grounds that it is a treaty-related matter, as opposed to a criminal, civil or constitutional appeal case.

Under the CSME agreement, as provided in the Revised Treaty of Chaguaramas, Jamaican citizens are entitled to travel freely to member states. Ms Myrie is contending that her right of freedom of movement was violated by Barbadian immigration personnel when she was searched, detained, and returned, against her will, to Jamaica - without any legitimate cause.

Although the justices of the CCJ are reviewing this case as an original jurisdiction or treaty matter, this will serve as a study in the operation of the court, and signal to Jamaica whether it should also sign on to the appellate jurisdiction of the CCJ.

CCJ AT WORK

While Jamaicans have not been sending appeal cases to the CCJ, other CARICOM nationals have been utilising the tribunal. Among these are two women (one very elderly) from Guyana, who had a long-running dispute about the right to occupy a condominium. With Guyana having no second-tier appellate court, having abolished appeals to the Privy Council decades ago, the women seized the opportunity to bring their case, Elizabeth Ross v Coreen Sinclair (2008), before the CCJ.

The court heard the matter, with two Guyanese attorneys representing the women without charging a fee. The women never had to travel to Trinidad, as they gave witness via videoconferencing equipment that the CCJ has installed in courts of member states that never had them.

"Ordinary folk now have additional scope and opportunity to be heard and to obtain justice," notes CCJ President Sir Dennis Byron. This contrasts with the distance of the Privy Council in England and the related costs of legal representation. In terms of access, the CCJ has the option to sit in different countries, as it has done in Barbados.

It should be noted that, so far, the CCJ has received more civil cases than total criminal and constitutional matters combined. This shows that there are relatively fewer cases involving the government - a reversal of what obtains in countries without the CCJ. Justice Byron, who met with journalists from the region in Port-of-Spain last week, underscores the point that civil cases heard by the CCJ are not limited to wealthy people or corporate entities.

So, the CCJ is bringing justice in the reach of ordinary citizens, as opposed to the current arrangement in territories like Jamaica where final appeals are made to the London-based Privy Council.

Although Jamaica has not yet signed on to the appellate jurisdiction of the CCJ, local lawyers - as well as judges - have been benefiting from the Caribbean case law or jurisprudence being developed by the rulings of the regional court. Indeed, Jamaican lawyers have been developing their professional skills by appearing before the CCJ. So, like it or not, Jamaica has already begun to benefit - directly or indirectly - from the operation of the CCJ.

In the meantime, the CCJ and the entire region anticipate benefiting from the "intellectual nourishment", that Jamaica's full participation in the court would bring, according to the CCJ president.

Debate in the region about the need to replace the UK-based Privy Council first began in Jamaica by way of a Gleaner editorial in March 1901. Surely, a century is more than adequate time to contemplate this issue - in the face of continuous prompting by the post-colonial power.

After 50 years of Independence, it's time for the doubters to get on board.

CCJ facts

Between July 2005 and June 22, 2012, the CCJ received 94 appeal cases from Barbados, Guyana and Belize, combined. For the same period, 12 treaty-related matters have been filed with the court, with 10 already adjudicated.  Legal representation in appellate cases involves 45 senior counsel and 130 junior counsel.

Jamaica may dump British appeals court

Jamaica may dump British appeals court - New York Amsterdam News: Caribbean:

There is every indication that the Caribbean trade bloc nation of Jamaica will shortly dump the British Privy Council as its final court of appeal and switch to the Caribbean Court of Justice (CCJ), even as the island’s main opposition party continues to be ambivalent about this bold step.

While in government before losing the late December 2011 general elections to Portia Simpson-Miller’s People’s National Party, the Jamaica Labor Party (JLP) appeared to reverse its traditional opposition to the CCJ. Recent noises from its leader, Andrew Holness, are pointing in the other direction.

But as the island prepares to observe 50 years of independence from Britain on Aug. 6, government officials have been forced to go on the defensive to refute the JLP’s claims that a referendum is needed to effect the change. If adopted, criminal and civil appeals would be heard by the Trinidad-based CCJ, either at its home base or where a case is being heard when judges decide to temporarily take the court to a territorial jurisdiction.

Foreign Minister A.J. Nicholson argued that none of Britain’s former colonies, including Canada, Australia, New Zealand and Belize, which have all delinked from the British court in recent years, used costly referendums, so the cabinet is at a loss as to why the JLP has been demanding that one be held to bless the move.

Nicholson contended this week in an official government bulletin on the issue that the opposition and others pushing for a referendum just months after the December general elections “wish for Jamaica to go where all others before us have feared to tread,” noting, “A referendum is, in essence, a general election, with a political campaign being the axis on which it spins. No country within the Westminster system of government has wished that matters relating to its judiciary be subjected or exposed to the political hustings.”

Set up in 2005 by Caribbean governments, the CCJ has struggled to attract members from the 15 nations in the community, with only Guyana, Belize and Barbados signing on to its civil and criminal appeals component, triggering criticisms about judges having too little to do. The constitutions of many Caribbean countries demand referendums and up to a two-thirds parliamentary vote in favor of delinking from the court, but recent research has shown that a divorce agreement with the court might well suffice instead of a costly and divisive referendum.

Trinidad, where the CCJ is based, which, ironically, is not a member, has also signaled its plans to join. The oil- and gas-rich twin island republic with Tobago will also celebrate 50 years of independence in late August and, like Jamaica, thinks the time has come to cement its sovereignty by subscribing to a regional court rather than leaving decisions to judges nearly 5,000 miles away.

Trinidad and Tobago Prime Minister Kamla Persad-Bissessar and Simpson-Miller, the only two women heads of government in the regional bloc, jointly announced their plans to come on board after an extensive discussion in Suriname in March.

 

Source:  2012 New York Amsterdam News.

Myrie v Barbados government has first mention in CCJ

Published by Jamaica Gleaner Online

February 17, 2012

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by Barbara Gayle, Staff Reporter

The case brought by Jamaican Shanique Myrie against the Barbadian government had its first hearing yesterday in the Caribbean Court of Justice.

The hearing, which was in the form of a case-management conference, was done by way of video link from the Supreme Court.

Myrie is accusing Barbadian officials of a cruel and vulgar cavity search at the Grantley Adams International Airport in Barbados on March 14 last year.

The case-management conference was held to ensure that all the relevant documents were filed and to determine the way the hearing should proceed.

A date was not set for the next hearing but it was reported that it is likely to to take place in April.

Justice Adrian Saunders, Justice Jacob Wit and Justice Winston Anderson from the Caribbean Court of Justice presided from Trinidad at yesterday's hearing.

Myrie is being represented by Jamaican attorneys Michelle Brown and Marc Ramsay.

Jamaica is the contracting party and was represented by attorneys-at-law Kathy-Ann Brown and Alicia Reid from the Attorney General's Department.

First before ccj

The case is said to be the first of its kind before the CCJ which is being asked to determine a critical issue which will be used as a precedent.

Myrie, 22, wants the CCJ to determine what is the minimum standard of treatment to be given to CARICOM nationals moving within the region under the Revised Treaty of Chaguaramas and its goal of hassle-free travel.

Myrie is alleging that degrading treatment was meted out to her at the hands of Barbadian border officials at the airport.

Myrie's lawyers had allowed time for both the Jamaican and the Barbadian governments to attempt to settle the issue.

However, when a settlement was not reached, Myrie's lawyers obtained leave from the Jamaican Government to file the action.

Simpson Miller daring to take Jamaica in different direction

Source: Toronto Star

January 15, 2012

Last month, in an otherwise ordinary election debate, Jamaica’s candidates for prime minister were asked whether they agree with former prime minister Bruce Golding’s infamous stance against having openly gay people in his cabinet.

After then prime minister Andrew Holness of the Jamaican Labour Party hedged on the question, opposition leader Portia Simpson Miller gave an answer previously unthinkable for a Jamaican prime ministerial candidate.

“I do not support the position of the former prime minister, because people should be appointed to positions based on their ability to manage and to lead,” she said. “No one should be discriminated against because of their sexual orientation.”

Simpson Miller also called for a conscience vote in parliament on Jamaica’s “buggery laws,” which criminalize male homosexual acts.

The unprecedented comments stunned observers, created a firestorm and brought LGBT rights — long a sensitive issue in a country with a reputation for homophobia — to the forefront of the election.

Clive Mullings, the energy minister under the JLP, warned that “God brought down fire and brimstone on Sodom and Gomorrah.” He was not re-elected. Another JLP member openly mused whether international gay rights organizations were funding the PNP’s campaign.

Some observers predicted Simpson Miller’s stance would spell her demise in the Dec. 29 election. But despite polls that showed the two parties neck and neck, her People’s National Party coasted to victory, collecting 41 seats to the JLP’s 22. The result made the conservative JLP the first one-term administration in the island nation’s modern history.

“It showed how courageous she is,” said Glenda Simms, a renowned feminist who has been an adviser to Simpson Miller. “She knew they could turn it around against her, and they tried. … But she’s not prepared to be a part of that history of discrimination. … She’s going to do whatever she can to break it.”

Simpson Miller, 66, is turning heads by taking aggressive stances on sometimes contentious issues, occasionally going against her own party. (The gay rights issue was not a part of their platform.)

The woman many Jamaicans refer to as “Sista P” has said she intends for Jamaica to jettison the monarchy and become a republic, taking its final — if symbolic — step toward independence. The country celebrates 50 years of independence from Britain in August.

At her swearing-in ceremony on Jan. 5, Simpson Miller argued the Caribbean Court of Justice(CCJ) should be Jamaica’s final court of appeal. It would replace the judicial committee of the Privy Council, a reconstituted panel of judges from the British supreme court. The Trinidad-based CCJ has been underused because Jamaica, Trinidad and others haven’t adopted it.

Holness, 39, called the general election in early December only weeks after being sworn in as prime minister. He took the job after his predecessor Bruce Golding resigned over the handling of the so-called “Dudus affair.”

After spending months fighting gang leader Christopher “Dudus” Coke’s extradition to New York on drug trafficking charges, Golding’s administration bowed to U.S. pressure in May 2010 and sent police and the military into his Kingston compound to take him into custody. The ensuing gun battle caused 73 civilian deaths, and the JLP was widely condemned.

Experts said voter outrage over the Dudus affair and concerns about the economy trumped other issues. Meanwhile, Simpson Miller’s comments about LGBT rights are resonating with the public.

“People have taken it as a signal from the prime minister that there is a new era, a new attitude that needs to be embraced,” said Ivelaw Lloyd Griffith, a political science professor at York College of the City University of New York and an expert in Caribbean politics.

Simpson Miller was Jamaica’s prime minister from March 2006 to September 2007. She won the job in an internal party vote when her predecessor P.J. Patterson retired. She narrowly lost her 2007 re-election bid and became leader of the opposition.

She was born in the rural town of Wood Hall in St. Catherine Parish and was first elected to parliament in 1976 with the PNP. She has served in various cabinet positions since 1989.

Glenda Simms was president of the Canadian Advisory Council on the Status of Women in 1996 when Simpson Miller, then minister of labour, social security and sport, asked her to return to Jamaica to head the country’s Bureau of Women’s Affairs.

Simms returned, impressed by Simpson Miller as “someone who really wanted to make a difference.”

Simms remembers accompanying Simpson Miller to see people in a fire-ravaged inner-city neighbourhood and thinking she was destined to be prime minister one day.

“I thought: ‘This is the kind of leader that everyone needs.’ She listened, she understood their lives and she did not distance herself from them.”

But Simpson Miller, whose campaign emphasized job creation, might have to resort to tough fiscal austerity measures to get her country’s stagnant economy on track. Jamaica is saddled with a public debt load of more than 120 per cent of its GDP — one of the world’s largest debt-to-GDP ratios. The island’s unemployment rate is 12.9 per cent, up from 9.8 per cent in 2007.

Its agreement with the International Monetary Fund, which supplied it with $1.27 billion in 2010, expires in May and must be renegotiated. Those talks, though difficult, appear to be an administration priority: Finance Minister Peter Phillips is due to meet with an IMF team next week.

Simpson Miller’s election continues an anti-incumbent trend in the region. St. Lucia’s ruling party was voted out earlier in the year, and Guyana’s longtime governing party lost significant legislative ground.

It’s a sign that the region’s voters — usually fiercely loyal to one party or another — are feeling less attached, Griffith said. “People are rethinking how they should do their voting and whether they should vote at all.”

Despite the lopsided seat count, Simpson Miller was not elected on a groundswell of public support. The 53 per cent voter turnout is Jamaica’s lowest ever for a general election except that in 1983, when the PNP boycotted the vote. The country’s voter turnout hovered around 85 per cent in the 1980s.

Alissa Trotz, director of the Caribbean studies program at the University of Toronto, said the result shows an overall disaffection with the political process in Jamaica. She said she hopes the PNP recognizes its 41 seats don’t overwhelmingly translate to a majority mandate, given the low turnout.

“It presents Portia with the challenge of reaching across the aisle,” she said.

But Simpson Miller may not always find a willing partner on the other side. In his concession speech on election night, Holness declared, “Our campaign for the next government starts tomorrow.”

Privy Council does cost something

by Jeffrey Foreman, Contributor

Source: Jamaica Gleaner

I respond to one aspect of the arguments advanced by Robert Collie in his article 'Use CCJ funding to improve our own courts', published Thursday, January 5.

While no direct cost to maintain the Privy Council is incurred by the Government of Jamaica , there is a cost attached to accessing the court which would either be lessened or not exist at all if the Caribbean Court of Justice were our final court. In this regard, I speak of the cost to taxpayers of having to pay for counsel in the UK or, alternatively, airfare, accommodation and other expenses for anyone travelling to argue before Their Lordships.

Such expenses would clearly be significantly less if the same individuals travelled next door to Trinidad. Moreover, these costs would be eliminated whenever the CCJ, executing part of its role as a roving court, has sittings in Jamaica. To this latter point must be added to the mix the fact that teleconferencing equipment has been installed in all signatory states so that, even if the CCJ was sitting in Trinidad, no government official need pack a single bag to go anywhere.

Individual financial burden

Those same costs faced by the government have to be borne by individuals. It almost need not be said but, whereas the state, even a cash-strapped one like ours, can always allocate funds or raise taxes or borrow to meet its obligations, in this case legal ones, an individual does not have the same latitude.

One can therefore conclude that the cost of accessing the Privy Council must serve as deterrence to any Jamaican who is of the view that justice has not been done at the level of the Court of Appeal. Indeed, most cases from Jamaica involve the State (criminal or constitutional matters), wealthy individuals, or big companies.

In contrast, the trend so far for the CCJ is that more civil cases are being heard by that court. This fact was highlighted by Sir Dennis Byron, president of the CCJ, in a speech titled 'The CCJ and its Integral Role In Development Of Caribbean Jurisprudence', at a lecture hosted by the UWI Cave Hill Law Society in November 2011.

In that same speech, Sir Dennis noted that the court has heard a number of civil appeals in forma pauperis under Rule 10.6 of the CCJ rules.

The cost attached to accessing the Privy Council has the effect of keeping ordinary individuals away from the highest rungs of justice. Indeed, as has been pointed out in many fora, limited access also means that the development of our jurisprudence is restricted to criminal matters and those affecting moneyed interests.

Lastly, I would like to counter the argument being implied by Mr Collie that the money spent to honour our treaty obligations has been wasted on a court which does not help to improve the administration of justice in the country.

In addition to providing the teleconferencing equipment men-tioned earlier, the CCJ, through strengthening the work of Caribbean Association of Judicial Officers, the Caribbean Academy for Law and Court Administration, and the Caribbean Court Technology Users, enhances the administration and delivery of justice in Jamaica and throughout our region.

If, as Justinian noted, "Justice is the constant and perpetual wish to render to everyone his due," most Jamaicans will have to satisfy themselves with a placard-bearing type of justice, for it is all they will be able to afford with the Privy Council as our final court.

Jeffrey H. Foreman is a student in the Faculty of Law, UWI, Cave Hill

Use CCJ funding to improve our own courts

Source: Jamaica Gleaner - January 5, 2012

I have noticed the stream of letters in your newspaper and elsewhere attesting to the 'need' for the Caribbean Court of Justice (CCJ). Here are a few facts that may be worth swallowing before the CCJ crowd jumps up and down and trumpets victory:

1 Currently, the Government of Jamaica spends US$3.07 million per annum to maintain this court. We are the biggest financial contributor to a court that was not chosen by the Jamaican people.

2 Currently, the Government of Jamaica spends US$0 to maintain the Privy Council.

3 Trinidad and Tobago, the country that currently hosts the CCJ, has given all indications that it has no intention of joining the CCJ. This may be linked to the history in that country of judges leaving the Bench and becoming actively involved in the political process. The saga of their former chief justice, Satnarine Sharma, is only the tip of the iceberg.

Indeed, one could look at the recent involvement of a local resident magistrate, who left the Bench to join the political process, of the very real fact that you will have judges who will have their political biases. I will quote the well-worn line from Lord Hewart CJ in R v Sussex Justices, Ex parte McCarthy: "Not only must justice be done; it must also be seen to be done."

4 The British, despite all their protestations, cannot unilaterally dispense with the Privy Council. It is part of the Jamaican Constitution (as is the Queen). It would require the head of state in Jamaica to rid herself of us (which she has every right of doing). However, her role as Queen of England does not, in theory at least, supersede role as Queen of Jamaica.

5 The CCJ only recently appointed a Jamaican to sit on its Bench, a Jamaican who has never served in the judiciary in Jamaica or elsewhere. It is to be noted that a lot of the criticism levelled against the decision in Morin v the Attorney General of Belize targeted the judge's judgment. To even the unseasoned legal scholar, his judgment, in particular, was cause to pause, though one thankfully notes that the outgoing CCJ president, Michael de la Bastide, and Justice Saunders of the same CCJ provided most excellent judgments to counterbalance that judge's judgment.

Appeals to indignation over colonialism is a red herring which should not be given any substantial weight. We do not look to our courts with any special lustre that their being called 'colonial' affects any right-thinking Jamaican. We want our courts to provide predictable, reliable and judicially sound judgments. It has been our experience, in Jamaica at least, that these characteristics don't come out often from our justice system.

Give common man a say

If the CCJ is such that it will meet with the people's desire, and if it is to have the ultimate judgment over the people's lives the people should be allowed to have a say in whether they want the court or not. The feeling that justice is a cloistered virtue that the common man should have no say over may be 'catnip' for the petit-bourgeoisie intelligentsia in our higher-education senior common rooms. However, it does not resonate with the common man.

Maybe if we had more accountability for our judges and people didn't feel that judges were so untouchable and unrelatable, maybe people could start to buy into our justice system and feel that it is an integral part of their lives.

We are spending US$3.07 million a year that could be better spent fixing our local courthouses, training more judges and providing greater access to justice. We could have a main criminal courthouse in Kingston that actually has parking that members of the public and attorneys can have access to. We could even, and this may blow the minds of readers, actually start to clear up the backlog of cases jamming our court system.

One wonders what the almost US$21 million, since inauguration, could have been used for. Hopefully, something more than a shiny building in Port-of-Spain providing fat pay cheques to judges who know as much about the life of the man in Pepper, St Elizabeth, as they know about the life of the man on Broad Street, Bridgetown.

Written by Robert Collie who is an attorney-at-law.

JFJ: Referendum for CCJ

JFJ: Referendum for CCJ

Source: Jamaica Gleaner/ Power 106 News

Human rights advocates, Jamaicans for Justice (JF), are maintaining that Government must conduct a referendum to determine whether to set up the Caribbean Court of Justice (CCJ) as Jamaica’s final court of appeal.

Executive Director of JFJ, Dr. Carolyn Gomes, says the matter is too important to not allow citizens to have a say in whether to establish the CCJ as Jamaica's final appellate court.

Dr. Gomes was responding to intentions outlined by the People’s National Party (PNP) in today’s Gleaner, to have the CCJ established in both the original and appellate jurisdictions, in time for the country’s 50th Independence celebrations this year.

If the PNP is successful, the CCJ will replace the London-based Privy Council as Jamaica’s final appellate court.

Minister of Justice and Attorney General in the former PNP administration, A.J. Nicholson, said given the softening of the Jamaica Labour Party’s stance on the issue, he was confident that the move would be supported by both Houses of Parliament.

However, Dr. Gomes maintains that there are still several issues, particularly regarding the security of the court, that remain a serious cause for concern.

She argues that CCJ Agreement, which establishes the court, can be easily altered by a simple majority of CARICOM prime ministers.

She notes that there was in fact a recent alteration of the Agreement, to amend the terms of the Regional Judicial and Legal Services Commission, the regional body which appoints judges to the court.

The move to institute the CCJ as Jamaica’s final appellate court was an effort commenced by the former P.J. Patterson-led PNP Government, but was strongly opposed by the Edward Seaga- led Opposition, the Jamaica Labour Party.

To date only Barbados, Belize, and Guyana have replaced the Privy Council with the CCJ.

Jamaica and Trinidad and Tobago have failed to establish the CCJ as their final court of appeal because of continuing disagreements in both countries.