Source: Caribbean Net News
Published on Wednesday, December 9, 2009
GENERAL INFORMATION, NEWS AND VIEWS ABOUT THE CARIBBEAN COURT OF JUSTICE (CCJ)
LESSONS FROM SAINT VINCENT FOR JAMAICA
by CLAUDE ROBINSON
Source: Jamaica Observer
Published: Sunday, November 29, 2009
Queen Elizabeth II arrived in Trinidad and Tobago last Thursday for the Commonwealth Heads of Government Meeting to what must be good news for the monarchy: The people of St Vincent and the Grenadines had voted decisively in a referendum to retain her as their Queen and head of state.
The "No" vote of 55.64 per cent was a huge rebuff for Prime Minister Ralph Gonsalves who may have timed the vote to coincide with the Queen's presence in the Caribbean, hoping that an affirmative "Yes" would have been a triumphal way to say goodbye to a powerful symbol of British colonial rule.
While the referendum results are of primary interest to the people of St Vincent and the Grenadines, it is also significant for other regional countries, especially Jamaica where political administrations have wrestled with the same constitutional question the Vincentians have just settled.
A yes vote would have allowed St Vincent and the Grenadines to join Trinidad and Tobago, Dominica and Guyana as the only Caribbean Community (Caricom) countries to sever constitutional ties with Buckingham Palace and select their head of state from among their own people.
Guyana has an executive president, which makes Bharrat Jagdeo head of state and head of government; while Dominica and Trinidad and Tobago have 'ceremonial' presidents with effective power remaining in the hands of the prime minister.
Since the 1970s Jamaica has been engaged in a tortuous constitutional reform process, including breaking ties with the Queen as head of state and establishing a republic similar to Trinidad's. However, the issue has never been put to the people as successive administrations remain spooked by the 1961 referendum against West Indian federation promoted by Norman Manley and the People's National Party (PNP) and opposed by Alexander Bustamante and the Jamaica Labour Party (JLP).
One of the questions arising from last Wednesday's referendum result is the extent to which Caribbean people wish to retain links to British symbols. Or was it simply a statement on the stewardship of Prime Minister Gonsalves?
The referendum would have replaced the St Vincent constitution in force since independence in 1979. The "No" vote of 55.64 per cent was well short of the required two-thirds threshold.
How could Prime Minister Gonsalves have got it so wrong? What happened since the last general election in 2005 in which he and his Unity Labour Party (ULP) got 55.26 per cent of the vote and 12 of the 15 seats in Parliament?
In the campaign leading up to the vote, the prime minister stressed that although he had nothing personally against Queen Elizabeth II, it was time for Saint Vincent to stop having a monarch as its head of state: "I find it a bit of a Nancy story that the Queen of England can really be the Queen of Saint Vincent and the Grenadines."
According to some St Vincent watchers, the referendum result may be a reflection of some unease among voters for the prime minister's reputed affinity towards executive presidents Hugo Chávez of Venezuela and former Cuban leader Fidel Castro.
However, that view was contradicted by the campaign rhetoric in which Mr Gonsalves asserted that the proposed constitution for Saint Vincent and the Grenadines would not have created an executive president because that would give the office holder too much power in the small country, he said in an interview reported in the Trinidad Express.
On the other hand, the Opposition New Democratic Party (NDP) advocated for a "No" vote on the proposals, disputing Mr Gonsalves' assertion that a "Yes" would reduce the power of the prime minister, increase the power of the Opposition and strengthen the country's democracy.
Lessons for Mr Golding
What lessons can Prime Minister Bruce Golding draw from the outcome in St Vincent as he contemplates the idea of a referendum to determine whether Jamaica should adopt the Caribbean Court of Justice (CCJ) as the country's final court of appeal, replacing the British Privy Council?
As it stands, Jamaica can adopt the CCJ as its final court of appeal without a referendum, according to expert opinion. However, in order to entrench the court in the Jamaican constitution the people of Jamaica must agree in a referendum. The argument is that because the Privy Council is now entrenched in the constitution, any court that replaces it would also have to be entrenched.
While I support the CCJ as our final appeal court, I also believe that this matter must be put to a referendum, given divided opinion on the issue.
These divisions may have been sharpened last week by the Privy Council ruling in favour of Mr Ezroy Millwood and the National Transportation Cooperative Society. Some will view the judgement as justice, finally, for the beleaguered franchise, while others may regard it as an imposition by 'foreign' judges that will cost taxpayers some $1.85 billion.
Of course, one way of securing a predicted outcome in a referendum is where the two parties - governing and opposition - agree on the matter to be decided and neither would seek to take advantage of the other. But even here the outcome may not be assured.
Speaking with Beverley Manley on Hot 102 the day after the losing the vote in St Vincent, Mr Gonsalves indicated that the two parties had earlier agreed to support the "Yes" vote. His clear implication was that the opposition had backtracked.
News out of St Vincent offered an explanation for the change of heart: NDP leader Arnhim Eustace opined that the two sides had failed to reach an agreement on a number of fundamental issues, including the Integrity Commission, the Human Rights Commission, the ombudsman, and the Electoral and Boundaries Commission.
In other words, the opposition appeared to have tied its support for a "Yes" vote to other issues of human rights and accountability, which it considered important. Or they may have smelled that the government was politically vulnerable.
Thus, another lesson is that a referendum is not always about the specific item on the ballot paper and can easily become a statement on the performance of the government. Simply put, referenda are fraught with political danger.
In the context of the current economic challenges faced by all governments in the region, voters are concerned about the ability of incumbents to increase opportunity, improve living standards and maintain social peace. Opposition parties are sniffing power.
Finally, it may also be that a majority of voters want to retain their connection and find no problem with an anachronism of a governor general as the Queen's representative in Jamaica instead of being a symbol of the Jamaican people.
It is also significant that the vote came as the 53-member grouping of Britain and its former colonies spread across the globe was meeting in Port of Spain trying to find relevance in the new balance of power in the world.
In these circumstances, Mr Golding is unlikely to test the waters about entrenching the CCJ any time soon. On the larger issue of changing the Jamaican constitution to have a president as the Jamaican head of state, we can, in the famous words of former prime minister PJ Patterson, 'forget it'.
VINCENTIAN REFERENDUM: A CASE OF TOO MUCH, TOO LATE?
By Rickey Singh
Source: The Jamaica Observer
Published : Sunday, November 22, 2009
THE court battle to block a national referendum taking place this Wednesday (Nov 25) on a new constitution for St Vincent and the Grenadines may turn out to be a case of too much, too late.
Last Wednesday (Nov 18) a High Court judge chose tomorrow (Monday) to begin the hearing of the petition filed by a four-member "no vote committee" seeking to block the referendum, called to either endorse or reject the proposed new constitution.
The committee members, known to be associated with the parliamentary opposition New Democratic Party (NDP) of Arnhim Eustace, are contending that it was unlawful, discriminatory and immoral for state funds to be made available only to the "yes vote" campaigners of the governing Unity Labour Party (ULP) of Prime Minister Ralph Gonsalves.
Lawyers for the state, on the other hand, plan to outline why the application to fund the "no vote" referendum campaign should be dismissed as being without merit, frivolous and vexatious.
At stake for the government is the big challenge of securing a "yes vote", with two-thirds of the eligible electorate, for the new post-independence constitution.
Among its significant features will be the end to a governance system with the British monarch as Head of State and replacement of the Privy Council with the Caribbean Court of Justice (CCJ) as the country's final appellate institution. Empowerment of the parliamentary opposition is also another major provision.
The immediate challenge is for the government's legal team to succeed, either tomorrow (Monday) or on Wednesday, in getting the presiding judge to grant a customary seven-day period for a response to the petition filed by the "no vote committee".
It is the prevailing view in legal circles that it would be consistent with established practice for the judge to allow the argument in favour of the respondent.
This therefore means that while the legal battle is being waged in the High Court in Kingstown on Wednesday, Vincentians will be casting their ballots at polling stations on referendum day - for or against the new constitution.
The question being discussed in political and legal circles is whether this scenario amounts to a national issue of too much, too late.
Too much, that is, to ignore parliament's stamp of democratic approval for the new constitution to be endorsed, or rejected, at a national referendum; and too little in terms of an apparent feeble effort - no known militant, focused opposition, and at a comparatively late stage, to block Wednesday's historic decision by the electorate.
Although approved by a two-thirds parliamentary majority last September 3 in the 15-member House of Assembly, a two-thirds majority is also required at a national referendum for the new constitution to come into force.
The government's response to its opponents has been that the new constitution was approved by a two-thirds majority after widespread national consultations on constitutional reform.
The parliamentary opposition NDP was involved, it said, in both the constitution reform process as well as the parliamentary debates for approval of the new constitution that is now the subject of Wednesday's referendum.
As argued by Prime Minister Gonsalves, funding for the educational campaign on constitutional reform was borne by the state with help from the Organisation of American States.
"Now that the required two-thirds parliamentary majority approval of the new constitution was obtained, I find it strange for the government to allocate state funds for the NDP to oppose the decision of the National Assembly," he said.
Gonsalves' NDP opponents, for their part, have dismissed his argument as engaging "in sheer political sophistry". Nevertheless, clarification has been lacking on why the clamour for state funds in support of a "no vote" campaign was not made during the House debate on Wednesday's referendum.
When told about the moral argument contention of the government's opponents on the sharing of state funds for the referendum campaign, Prime Minister Gonsalves claimed that the NDP had "fallen under foreign influence to create confusion" and was now "panicking" because of the nature of its campaign that "engages in superficialities rather than one of substance".
He said he was "very optimistic" for a required two-thirds "yes" vote (approximately 67 per cent of the voting electorate).
At the last general election of December 2005, the incumbent ULP secured 55.26 per cent of the valid votes and 12 of the 15 seats compared with the NDP's 44.68 per cent vote and three seats.
| Commentary: Law and Politics: Progress and change must go together | |
| Published on Tuesday, October 6, 2009 | |
| By Lloyd Noel Source: Caribbean Net News Progress is not a movement from some bad place where you think you are, to some perfect place you would like to be. Progress is about the development of oneself and by extension that of the society as a whole. And in our situation in Grenada today, change is not just a promise, it is an absolute necessity that we must change the society as a whole. To do otherwise is like saying to those coming thereafter, that if Tom Dick and Harry, could get away with the wrong-doing in public office then so can you; and the need for genuine change to bring about real progress, will remain a hopeless dream and pie in the sky wishful thinking, that will always take us backwards and never forward. There is absolutely no doubt whatsoever, that the society we are struggling under, for the majority to make a living of survival now-a-days, must be changed, turned around or upside down, taken or removed from the state or feeling of stagnation or hopelessness and pushed, or prodded, or whatever it may take, to bring about some measure of progress and peaceful living and genuine survival. The lawlessness in too many areas are becoming the order of the day, whether it is simply walking into people’s yard or areas around the houses, and taking away any and everything they can carry; or going into gardens and farmlands and either stealing crops to go and sell, as though they planted and cared them for market; or maliciously chopping up and rooting up fruits and plants and leaving the poor farmer in economic distress; and even cruelly damaging animals and poultry for pure spite, because the culprits have some grudge or axe to grind with the owners, all these and those are now common place all over the country side. Some people are behaving as though they have no regard, or respect, or concern for lawful authority and the consequences that would flow from being caught and prosecuted. And to make bad matters even worse when they are caught and found guilty, and the magistrate impose the penalty provided by the law, others misguidedly take it upon themselves to protest, and complain and accuse the magistrate for being too harsh and draconian in enforcing the law. We need more such judicial officers, like the very fearless one we have in the Western district. We are hearing about violent incidents with knives and cutlasses now-a-day, as though the law pertaining to offensive weapons has been abolished. The police force have to be much more proactive with their presence and operations all over the country and not just for Marijuana plants detection. The rise in criminal activities is escalating far too rapidly and remedial action must be taken without further delay to curb this menace, or else we will soon join our neighbours to the North and South in terms of their frightening reputation for uncontrollable violent crimes. And should that situation ever be reached in these Isles, it would be worse than a hurricane disaster, because the one attribute we have and it remained intact after Ivan and Emily, is that all our visitors from wherever are always commenting with confidence how peaceful and safe and fearless they feel on the streets and other night spots when in Grenada. True enough one or two ugly incidents have occurred in the recent past involving a few visitors, but those few have been isolated instances that must be kept that way. We cannot afford to pretend, that we do not know or not hearing about the wrong-doing taking place around the country, and getting worse and more tragic with every other incident and close our eyes and ears to the reality. Because if we continue to maintain that position, and always feeling the problem is for those in authority to solve and nothing to do with us the shock waves will be much harder to cope with when it reaches our door steps, as it most certainly will in one way or another. We have to be our brothers and sisters keeper and share their grief; we have to co-operate with the law enforcement officers, and those in control and authority, to help bring about the changes that are necessary if we truly want to see progress for our people. And in talking about change and progress at this time, and about what is taking place around the Island of Grenada especially – in connection with the increasing incidents of criminal activities and lawlessness in general – the topic of our final Court of Appeal at the Privy Council in London, for all our English speaking CARICOM states except Barbados and Guyana, has again raised its troublesome head for further discussion and decision among other states. All the CARICOM states upon gaining their Independence from the early nineteen sixties continued to use the Privy Council as their Final Court of Appeal. Among all the other reasons, it was a free service to all Commonwealth countries from the motherland and the Head of State in Her Majesty. And even when many of the bigger states opted for Republican status with their local Head of State, they still kept the Privy Council as their Final Court of Appeal. Trinidad and Tobago is a good example right next door. In our cases in the OECS, we had no choice because we simply could not afford to finance a Final Court of Appeal, in addition to the first Court of Appeal we were already sharing as the Associated States Supreme Court. Guyana dropped the Privy council when it went Republic and the Barbados government was peeved over a decision against it from the Privy Council and decided to go its own way, although it kept the Queen as the Head of State, and continued to be called or known as little England. The Privy Council is staffed by Law Lords from the Former House of Lords – or Upper House of the British Parliament in England. And that in itself was a very peculiar arrangement that could perhaps only operate in England where so many things, and systems, and ways of life, have for centuries functioned on the basis and strengths of convention. In effect those Law Lords – very distinguished and learned lawyers, who became judges and later elevated to the highest level of the Court of Appeal – were sitting in Parliament where the laws are made, and later on sitting in a court as judges to rule on the very laws. Now from the first of October, 2009, that peculiar system is no more in existence. From that date the Supreme Court of England has taken over the role of the House of Lords as the Final Appellate Court in England, Ireland, Scotland and Wales (The British Isles). Under the new law passed through Parliament, eleven of those Law Lords who form that court, have moved out of Parliament and into their own independent Supreme Court Building, to sit only as Appeal Court Judges. And going with them into that new setting is the long standing portfolio of the Final Appellate Court of Her Majesty’s Privy Council, for those Commonwealth Countries which still maintain that judicial linkage. And with that change in the British Legal system that has been in existence for many, many centuries, and has served us with distinction, integrity, and enduring confidence since independence, the hue and cry has already started, that we in the CARICOM region must see this move as the beginning of the end, and make haste to find our own Caribbean Final Appellate Court. This call to cut our ties with England as the final Appellate Court is not new. In fact our CARICOM leaders some years ago amended the Treaty of Chaguaramas, to bring into force the Caribbean Single Market and Economy (CSME), and in that amended treaty that ALL the region’s leaders at the time signed, provision is made therein for the (CCJ) Caribbean Court of Justice, which is expected to perform a dual role as our highest court in the region. The first role deals with disputes among or between states, over the interpretation of the CSME. Rules and Procedures, and that came into operation as a matter of course. The bigger problem concerns the second role of the CCJ, as the Final Appellate Court for those states in CARICOM which have been using the Privy Council as such, from the time of their Independence. Of course, Guyana and Barbados had opted out of that arrangement before the CSME came into being, so they are the only two states now using the CCJ as their Final Court of Appeal. Needless to emphasize the point that the whole exercise towards bringing the remaining states into readiness to adopt the new court as their Final Appellate Court is fully tied up or entangled in politics between opposition groups in the respective states. The governments in power either have to go to the people by way of a referendum for authority, or must have a certain level of the majority seats in Parliament to be able to pass the enabling legislation. And therein lays the dilemma towards any formal movement. Even those who signed the CSME Treaty when they were in power are now in opposition with second thoughts. St Vincent and the Grenadines have taken the lead and I believe Belize have also published its intention to move ahead by year end. Elsewhere in the region, it is all lip service and grave un-certainty about where we going and how we plan to get there. Loads of doubt about that change is very prevalent among a very wide cross section of our people. And the major question remains large and looming among the many doubters on this matter are we ready and prepared to make that drastic change, at this or anytime soon? And from my own perspective, I cannot help or resist the query, would that change go together with the progress we are currently aiming to achieve? Only time and coming events will fully answer those questions. | |
| St Vincent PM welcomes comments by London's new judicial head Source: Caribbean net News Published: September 25, 2009 | |
KINGSTOWN, St Vincent and the Grenadines -- The Prime Minister of St Vincent and the Grenadines, Ralph Gonsalves, has welcomed remarks attributed to Lord Phillips head of the newly-created Supreme Court, which replaces the Judicial Committee. The Financial Times has quoted Lord Phillips as stating that he is searching for ways to curb “disproportionate” time he and his fellow senior justices spent hearing legal appeals from independent Commonwealth countries. Gonsalves has latched on to Lord Phillips' comments, to further press his case for persons to vote Yes in a Referendum in St Vincent on November 25 2009, to change its present Constitution. The parliamentary opposition New Democratic Party (NDP) has already started a campaign asking people to vote No and its former leader and founder, Sir James Mitchell, says he would like to see the Privy Council being retained as St Vincent's final court of appeal. Gonsalves called a media conference on Wednesday, after reading the Financial Times article, and blasted those who want to vote against the proposed Constitution and keep the Privy Council as the country's final court of appeal. If the referendum is passed in November, St Vincent and the Grenadines will become a full signatory to the Caribbean Court of Justice (CCJ). St Vincent and the Grenadines' current Constitution, which was handed down to the country in 1979 after it gained political independence from Britain, stipulates that the London Privy Council should be the final court of appeal. This could only be altered by two thirds of the persons voting yes in a Referendum, to change the Constitution. Gonsalves feels Lord Phillips’ comment is a “notice to quit colonial premises” and he was not willing to overstay his time. “I shall not loiter on colonial premises for one moment than is necessary. “We are a free and independent people and our judges are excellent; every single day our judges deliver the oxygen of justice. We have excellent judges on the CCJ and it is an excellent body,” Gonsalves said. Gonsalves said being part of the CCJ is like one having its own home. “We will not be tenants; we are owners.” The Financial Times states the Privy Council judicial committee is now used as a London-subsidised top court by about 15 independent nations, most of them small islands in the Caribbean and Pacific. “Those in St Vincent and the Grenadines who hanker for the continuation of appeals to the Privy Council have now received a proverbial slap in the face,” Gonsalves said | |