Accept the Caribbean Court of Justice

A-G: Accept CCJ
Source: Nation News
Published on: 1/25/09.
by TREVOR YEARWOOD

ATTORNEY-GENERAL Freundel Stuart wants Caribbean Community (CARICOM) nations to hurry up and accept the Caribbean Court of Justice (CCJ) as the court of "last resort" on all matters.

Stuart said only Barbados and Guyana had accepted the CCJ as the final Court of Appeal instead of the Judicial Committee of Britain's Privy Council.

On the other hand, 12 CARICOM countries subscribe to the CCJ as the only body with responsibility to interpret and apply the provisions of the Treaty of Chaguaramas that set up CARICOM – and so settle trade and other disputes in the community.

Stuart, who is also Deputy Prime Minister, indicated that he wanted all CARICOM member countries to send a clear signal that they believe "justice can be delivered in the Caribbean at the same level and at the same quality" as through the Privy Council.

Stuart was at the time defending the Government against charges that it was "anti-integration" and dragging its feet on the CARICOM Single Market and Economy (CSME).

He dismissed the charges, saying: "There is no political party in the entire Caribbean and no country in the entire Caribbean that has given more to the regional integration movement than the Democratic labour Party as a party or than Barbados as a country."

Stuart said it was Barbados and Guyana who were "at the forefront of keeping the Caribbean Court of Justice alive".

While they were doing this, other countries were criticising Barbados but demonstrating that they believed their former colonial masters "are the best people to decide what is just and what is unjust for them".

He added: "They have no confidence in the people of the Caribbean. So I don't mind the talk . . . . When they demonstrate that they are committed to Caribbean people and to Caribbean values, when they demonstrate that they believe that justice can be delivered in the Caribbean at the same level and at the same quality as it was in the former mother country where the colonial masters reside, that is when most of them will qualify for my respect."

Stuart also questioned the readiness of some leaders for the CSME.

"If you are still at a stage where you do not trust your own people to dispense justice, to interpret your law, (to ensure) that justice can be done to your citizens, can you tell me that you are ready for a Caribbean Single Market and Economy?" he asked.

"You can't be ready. If you still believe that your former colonial masters have values higher than the people you want to lead, you cannot be serious about any Caribbean Single Market and Economy."

The CCJ was established in February 2001 and inaugurated on April 16, 2005.
Antigua and Barbuda, Barbados, Belize, Grenada, Guyana, Jamaica, St Kitts-Nevis, St Lucia, Suriname, and Trinidad and Tobago were the states which originally signed on to the agreement, followed by Dominica and St Vincent and the Grenadines two years later.

CCJ 4 Years Later

Fourth year since CCJ inaugurated and court still being grossly under utilised
Source: Caribbean Net News
Published on Monday, January 19, 2009
Print Version
By Oscar Ramjeet

It is interesting to read that CARICOM Secretary General, Edwin Carrington has called on regional leaders to accept the Caribbean Court of Justice (CCJ) as the final court.

Carrington made reference to the statement made by Trinidad and Tobago Attorney General, Brigid Annisette-George that only the Caribbean and Mauritius still retained the Privy Council as the final court, as well as the comments made by former St Lucia Prime Minister Kenny Anthony that "countries in the forefront of decolonisation process could now find undisguised comfort in retaining the Privy Council".

I wish to point out that Anthony was Head of Government in April 2005 when the Court was established and was in office until December 2006, for about 20 months and St Lucia had not joined the Court and still has not done so.

We have entered into another year -- the fourth year since the CCJ was inaugurated -- and no other country has joined Guyana and Barbados to accept the CCJ as the final court in the region. It is very disturbing and distressing that there is no indication that any other country will join in the near future.

What is even worrying is that the Jamaica Labour Party (JLP) administration 20 years ago was in the forefront of the establishment of the CCJ, and now that administration under a new Prime Minister, Bruce Golding, which is back in power after 15 years, is no longer interested.

Trinidad and Tobago was also advocating for the Court. In fact that is the reason why the Court is now headquartered in Port of Spain, and now the twin-island Republic has not taken any positive action to abolish appeals to the Privy Council.

But although the countries like Antigua and Barbuda, Bahamas, Belize, Grenada, Dominica, Jamaica, Trinidad and Tobago, St Kitts and Nevis, St Lucia, and St Vincent and the Grenadines have not taken steps to rid the Privy Council as the final court, they could still use the CCJ in its original jurisdiction to resolve disputes between Caribbean countries that are parties to the revised Treaty of Chaguaramas, as well as international law issues, but they are not even doing this.

Since the Court was established in April 2005, 45 months ago, only two CSME matters were filed.

In fact the decision in the first matter filed by a Trinidad company against Guyana was given on Thursday.

The CCJ has recently taken steps to launch a series of public education initiatives to enhance the knowledge of the Bar and Bench in the region and to invite business, labour and members of the public to be part of the exercise. Lectures were so far held in Jamaica and Antigua and Barbuda.

It is now worrying and opposition politicians in Trinidad and Tobago, including former Attorney General, Ramesh Lawrence Maharaj, are advocating that the Court be closed because of the high operational costs, not only because of the highly paid judges, but the maintenance of the highly technical and modern Court facilities as well as the administrative and support staff.

It seems that both the government as well as the opposition have to agree to abolish appeals to the Privy Council because of the constitutional changes, and that may well be one of the reasons, but perhaps I should point out that several governments have changed since the establishment of the CCJ, including St Lucia, Bahamas, Jamaica, Belize, Grenada, but the situation remains the same. Barbados and the British Virgin Islands also have new governments, but Barbados has already joined and the BVI is a British Overseas Territory and is not a signatory to the CCJ.

Since only two of the twelve countries -- Guyana and Barbados -- have accepted the CCJ as the final appellate court, the CCJ is grossly under utilised and this is very unfortunate since it gives them little scope to develop a Caribbean jurisprudence, which I have no doubt that they are eager to do.

There was some concern in the past that the CCJ was in favour of the death penalty as opposed to the London-based Privy Council, but a recent decision by the CCJ has dispelled the fear that it was a "hanging court" as contended in some quarters, since the regional Court has demonstrated that it will look at each case on its merits.

In any event, the Jamaican Parliament recently passed a motion by a wide majority to retain the death penalty, and St Kitts recently carried out an execution.

Dr Oswald Harding, former Attorney General of Jamaica, said that he was not in favour of the composition of the CCJ and expressed concern that no Jamaican has been named as a judge, although eight highly qualified persons applied for a position. He pointed out that Jamaica has the largest population in the English-speaking Caribbean, with a figure of 2.5 million. In a more humorous vein, he said that this was like selecting a West Indies cricket team without a Jamaican.

I have time and time again advocated that CARICOM Secretariat recruit a lobbyist to try to woo both the governments and opposition to take steps to rid appeals to the Privy Council, and they should do so as quickly as possible.

Carrington's statement is not enough; CARICOM should go further and take steps to approach governments as well as opposition parties to do so.

The Heads of Government have mandated the Ministers of Finance to provide funding for the recurrent expenses of the Court for the first five years of its operation. The question is -- what happens after April 16, 2010, the expiration of the five-year period?

CCJ Delivers Historic Judgment Under its Original Jurisdiction

TCL, subsidiary granted special leave to sue Guyana over cement tariff
Source: Stabroek News

Published: January 16, 2009 in News

In a historic first judgment delivered in its original jurisdiction, the Caribbean Court of Justice (CCJ) yesterday granted special leave to two cement companies to sue Guyana over what they said was the “unilateral” suspension of the Common External Tariff (CET) on cement.

The issue of whether Trinidad Cement Ltd (TCL) and TCL Guyana Incorporated (TGI) qualified as candidates for special leave to bring proceedings before the CCJ went to the core of the court’s jurisdiction, which in addition to being the highest appellate court in the region, also exercises an original jurisdiction by interpreting and applying the treaty which establishes the Caribbean Single Market and Economy (CSME).

TCL and TGI had accused the Guyana government of breaching the Revised Treaty of Chaguaramas by unilaterally suspending the CET on cement imported from countries outside of Caricom and sought to obtain special leave from the CCJ to sue Guyana. However, the two companies first had to satisfy certain conditions. They had to establish that they were “persons, natural or judicial, of a Contracting Party”.

Caricom member states who are contracting parties may bring proceedings before the CCJ, but for a person or company to bring proceedings before the court in its original jurisdiction, the party has to get permission from the CCJ, in addition to satisfying the required conditions.

On this issue, according to an executive summary of the judgment, the CCJ panel of judges ruled that the incorporation of a company in a Caricom state (which is a party to the treaty) is enough to qualify the company as a candidate for special leave to bring proceedings. It also ruled that an individual or a company may possibly approach the CCJ to seek relief against the state of which he is a national or any other Caricom state, which is a contracting party.

The CCJ panel of judges presiding in the case comprised, President of the court, Justice Michael De La Bastide and Justices Rolston Nelson, Duke Pollard, Adrian Saunders, Desiree Bernard, Jacob Wit and David Hayton.

In the judgment on whether a national of a state party to the treaty can bring an action, the court said it rejected a literal interpretation of the relevant article, Article 222 of the Treaty and took into consideration the policy and objectives of the Treaty as disclosed both in its preamble and its substantive provisions. In the judgment, the Court held that it is possible for an individual or a company to seek relief from the CCJ for breach of a Treaty obligation undertaken by a state whether or not that individual or company is a national of the offending state.

The CCJ also held that on the material facts placed before it the applicants had established at least an arguable case that other requirements for special leave had been satisfied, but emphasized that it was making no “definite finding on those issues which the ultimate success or failure of the proceedings might turn” since the ruling has now cleared the way for the substantive arguments in the case to be heard.

Regional submissions

The CCJ had invited all contracting parties and Caricom to make submissions on the issues before it, that is, whether under Article 222 of the Treaty of Chaguaramas, which pertains to the locus standi of private entities, it is sufficient for a company to be incorporated or registered under the domestic legislation of a contracting party.Secondly, the court also sought submissions on whether Article 222 accords one who is held to be a person, natural or juridical, of a contracting party the right to sue that contracting party.

The court said yesterday that it received submissions from Caricom, Barbados, Jamaica, Trinidad and Tobago and St. Vincent and the Grenadines. Notices for submissions were sent out last July to contracting countries except Guyana.

Originating application

TCL, a limited liability company incorporated under the laws of Trinidad and Tobago and registered as an external company under the laws of Guyana, and TGI, a limited liability company incorporated under the laws of Guyana in which TCL is the major shareholder sought special leave to file an originating application claiming compensation from/and or injunctive relief against the State of Guyana over the non-application of the CET on cement.

Guyana was represented by Attorney General Doodnauth Singh. While the State of Trinidad and Tobago was entitled to appear and was served with a copy of the proceedings it indicated via counsel at the case management conference preceding the hearing that it merely wished to observe the proceedings. The originating application was filed on April 3, 2008 by the Law Offices of Dr Claude Denbow, SC.

Alleged a breachTCL and TGI alleged a breach by Guyana of the provisions of Article 82 of the revised treaty under which Guyana is obliged to establish and maintain a Common External Tariff (CET) on cement imported into Guyana from outside of Caricom. The CET is incorporated into the laws of Guyana.

According to their submission, TCL and TGI alleged that Guyana is required to establish and maintain a CET in respect of all goods which do not qualify for community treatment in accordance with plans and schedules set out in the relevant determinations of Caricom’s Council for Trade and Economic Development (COTED); that the CET on cement is imposed at the rate of 15% on imports of cement from third states as reflected in the First Schedule of the Guyana Customs Act Chapter 82:01; that the imposition of the CET on imports of cement into Guyana extra-regionally is of great commercial benefit to them because of the protection afforded to their products; and that when the CET is imposed TCL and TGI enjoy a competitive advantage over imports which do not qualify for community treatment in accordance with the treaty.

Though they confined their allegations of not enjoying such a competitive advantage to the period from January 2007 and continuing even though the suspension of the CET commenced before January 2007, they said that at present they do not enjoy such a competitive advantage because of the decision of the Guyana government to suspend the implementation of the CET.

TCL and TGI alleged too that the revised treaty provides for COTED to authorise an alteration or suspension of the CET by a member state but the government sought no permission for this but Guyana was allowing the importation of cement from extra-regional sources without paying the CET as mandated by the relevant provisions of the revised treaty.

The two cement companies contended that they fulfilled all the relevant criteria for obtaining special leave “as Guyana has breached a provision of the revised treaty intended to enure to their benefit directly and that they are prejudiced by the breach.”As “nationals” of both Trinidad and Tobago (T&T) and Guyana, they alleged that the government of both countries declined or refused to espouse their claim and as such they sought special leave to seek redress from the CCJ.

On the other hand, Guyana admitted that the country suspended the implementation of the CET on cement and that COTED had not authorised any suspension in respect of the relevant period. The suspension was justified, he submitted, by the critical shortage of the commodity Guyana faced in view of its urgent developmental needs as a “disadvantaged community” in keeping with Article 1 of the revised treaty.

Attorney general Singh submitted that TCL and TGI were guilty of abusing their dominant position in the market and the court needed to protect consumers within Caricom; and that throughout Caricom there were complaints about the inability of TCL to supply the Caribbean market and in the period between 2001 – 2007 CET waivers were sought and obtained from COTED by Suriname, T&T, Jamaica and the member countries of the Organisation of Eastern Caribbean States (OECS).

He argued that the right to institute proceedings before the court was a right peculiarly vested in “State Parties” and that judicial review in municipal proceedings would have been the more appropriate course for TCL and TGI to take; and that the bringing of proceedings by one state against the other under the revised treaty may have serious political implications for the continuation and future of Caricom because the revised treaty intends that contracting parties operate as joint partners in Caricom and the CSME and only in the event of a breach of community obligations of the greatest magnitude was it foreseeable that such proceedings would be contemplated by one state against another.

He argued, too, that the applicants must prove that they are “nationals” in terms of the revised treaty, which requires eight different conditions to be met and that the applicants had not met them.

Lastly he argued that the obligation to implement the CET pursuant to Article 82 of the revised treaty does not yield any benefit to TCL and TGI “nor do they accrue any right.” Since no right or benefit accrues to the applicants, he argued that they are ineligible for special leave more so as no casual link was established between the applicants alleged loss and the failure on the part of Guyana to implement the CET.The CCJ has delivered over 20 judgments in its appellate jurisdiction.

DRF ( Jamaica) to provide services to CCJ and CARICOM

Dispute Resolution Foundation to Celebrate 15-Year Anniversary
KINGSTON (JIS):Thursday, January 08, 2009

Source: Jamaica Information Service - JIS

Several activities have been planned to mark the Dispute Resolution Foundation's (DRF) 15th anniversary this year, which has also been proclaimed National Year for Dispute Resolution.

The activities include the launch of parish exhibitions and a schools' competition; Alternative Dispute Resolution (ADR) workshops for sports and entertainment leaders; a one-day conference for tourism leaders; a gala awards function in July; a heroes of peace family fun day and concert in October, and a thanksgiving service in December. Several parish mediation, and peace and justice centre visits are also scheduled to take place.

Details of the events were unveiled during a DRF media briefing at the Courtleigh Hotel in Kingston on Wednesday (Jan. 7).

Board member of the DRF, John Bassie said this year, the DRF will also be placing emphasis on enhancing the delivery of court and commercial mediation services under Part 74 of the Supreme Court Civil Procedure Rules, which provides for most civil cases listed for trial in the High Court, to be automatically referred to mediation, once the first defence is filed. A mediator is either selected from a designated roster within 35 days, or one is appointed by the DRF, and a date, thereafter, set for the parties involved to meet. Attorneys and clients duly authorised to settle the matter, are required to attend and endeavour to reach a settlement.

Other activities scheduled for roll out, Mr. Bassie disclosed, are the publication of a seminal study on the attitudes, concepts, and prevalence of conflicts, and violence reduction initiatives in some 30 schools; and the institution of a number of community-based justice programmes and service, in partnership with the Ministry of Justice.

Regionally, Mr. Bassie said plans are also being made to consolidate work and partnerships established with fellow stakeholders in Belize, Guyana, Trinidad and Tobago, Barbados, Bahamas, and the Organisation of Eastern Caribbean States (OECS). He further advised that the Foundation will seek to establish formal relationships with the Caribbean Community (CARICOM), to provide services to the CARICOM Single Market and Economy (CSME), the Caribbean Court of Justice, as well as in matters pertaining to the Economic Partnership Agreement (EPA).

Noting security, violence, and governance; and business disputes arising from global and local economic developments, as the two main challenges which Jamaica will have to contend with during 2009, the DRF director said that in addressing these matters, there will be need to strengthen existing partnerships, and establish new ones with several key stakeholders. These include: the Ministry of Justice; the Caribbean chapter of the Chartered Institute of Arbitrators; private corporations; international development partners; communities; and young people.
Chairman of the DRF, Novar McDonald, who also addressed 0the briefing, noted several significant achievements, which the organisation has attained during its 15 years. These, he pointed out, include: the establishment of 16 service points across the island to deal with disputes arising in communities; implementation of dispute resolution initiatives in some 30 target schools in Kingston and St. Andrew, St. Catherine, and St. James; implementation of the school suspension programme, which aims to provide youngsters who have been suspended from school with the necessary support and channels through which they can discuss matters contributing to the disruption in their attending school, while ensuring that they are in good stead with their academics.

Other achievements, which the Chairman highlighted, include a 61 per cent success rate in the cases in which the DRF has mediated, and extensive training programmes undertaken in the wider Caribbean.

Counsellor, and Head of Development Cooperation at the Canadian Agency for International Development (CIDA), one of the DRF's key partners, Lorriane Belisle, noted that both organisations have had a long-standing relationship through the Foundation's work funded by CIDA. Some of these activities include: training of correctional officers and inmates at the Tower Street Correctional Centre, and South Camp Rehab Centre in Kingston, in dispute resolution in the 1990s; design and delivery of several initiatives under the Social Conflict and Legal Reform Project, inclusive of: the establishment of community Peace and Justice Centres in Trench Town, Kingston, and Flankers, Montego Bay, St. James; and development of a Restorative Justice Policy for Jamaica.

"CIDA is committed to supporting the Government of Jamaica's justice reform agenda, and values the DRF's role as a key partner in these reforms, based on its track record of high quality, appropriate, and innovative services," Mrs. Belisle said.

The DRF was also presented with a cheque for $200,000 by Manager of Corporate and Regulatory Affairs at Carreras Limited, Rhys Campbell, which will go towards enhancing the work and activities being undertaken at the Spanish Town Peace and Justice Centre.
On Tuesday (Jan. 6), Governor-General, His Excellency, the Most Hon. Professor Sir Kenneth Hall, declared 2009 as the National Year of Dispute Resolution, during a ceremony at King's House.

Caricom and Party Politics

Caricom and party politics '08
Rickey Singh
Wednesday, December 31st 2008
Source: Trinidad Express

ALTHOUGH they all remain officially committed to the creation of a Caricom Single Market and Economy (CSME), it became evident during 2008 that there are regional governments that are not singing from the same hymn sheet.

If the long overdue inauguration of the Caricom Development Fund was one of the few encouraging developments, the reality is that the list of unfinished business to move from a single market to a single economy remains quite significant.

The promise made at last July's Heads of Government Conference in Antigua for a special stakeholders consultation on the CSME was not kept and in the face of growing concerns about the likely negative consequences for our region from the international financial crisis, Caricom leaders have not considered it necessary for a special summit.

They seem to be quietly disposed to waiting until their inter-sessional meeting in Belize in March, if not February, to deal with this issue, along with a range of other matters, CSME-readiness among them.

At the sub-regional level, the Organisation of Eastern Caribbean States (OECS) may have underscored its own uneasiness, or disappointment, with the pace of progress for the CSME's inauguration in 2015 by the decision of its 48th summit in Montserrat to press ahead towards its Economic Union in 2009.

Trinidad and Tobago has been committed by Prime Minister Patrick Manning - without any consultation with the parliamentary Opposition or private sector and labour movement - to be part of this economic union, with some adjustments.

Its citizens have time to be better informed on how and why this union must take place ahead of an even more challenging process - a regional political union embracing T&T and the OECS without, hopefully provoking fractures with the rest of Caricom which is currently engaged in initiatives to widen and deepen integration and development with our Latin American neighbours.

The report from a group of experts, established under the chairmanship of Dr Vaughn Lewis, to examine and make recommendations for the OECS/T&T economic union with an eye also on political integration, should be useful for public information. But the OECS countries have already targeted 2009 for the realisation of their proposed economic union.

The initiatives for economic and political integration by the OECS and T&T are encouraging but there are problems ahead for lack of appropriate national consultations with national stakeholders.

It is also quite ironic that while enthusiasm is being whipped up for economic union, the OECS, as well as T&T, are yet to unveil any clear action plan to access the Caribbean Court of Justice (CCJ) as their final appellate institution and put an end to the old colonial link with the Privy Council in London.

The OECS countries will also be aware of the reservations held by the Bruce Golding administration in Jamaica about the CCJ, as any firm commitment to a new and empowered administrative structure for the Caricom Secretariat that may conflict with its own notions of sovereignty.

The Antigua and Barbuda government of Baldwin Spencer is heading towards new general election while the St Lucia Labour Party of Kenny Anthony is becoming increasingly militant in pressurising the lacklustre administration of Stephenson King, clearly with an early national poll in mind.

Across in Guyana, party politics took a bad turn for the main opposition People's National Congress Reform (PNCR), with the explosion of internal differences that by year end had deteriorated into open calls for the resignation of its leader Robert Corbin.

Corbin was quite dismissive of such calls and has vowed to remain at the helm as he continues to keep hope alive for a return of his party to the power lost in 1992 after some 28 years in power.
That is an optimism not widely shared, even by those outside of the PNCR's fold with their own disenchantment and disagreements with the governing People's Progressive Party (PPP) that has its own internal leadership tensions.

In T&T, for all the reported unpopularity of Prime Minister Manning repeated failures by the Opposition parties to effect a unity platform feed cynicism about threats to continued governance by the PNM.

This is going to be quite a high profile year for Manning in the full glare of media publicity as he hosts, first the Commonwealth Summit in April and then in November the Summit of the Americas with the new US President Barack Obama and new Secretary of State Hillary Clinton as superstar participants. More on this later.

Caribbean Court of Justice- Breaking New Ground

Caribbean Court of Justice - Breaking New Ground

By Deidre S. Powell

Paper Presented in Berlin, Germany - The Law and Society Association 2007

Abstract:
The Caribbean Court of Justice is the newest and most unconventional international judicial institution in the world to date. Although its membership is confined to fourteen of the smallest islands of the world, it is the first to have both an appellate jurisdiction in relation to civil and criminal law of member states and an original jurisdiction in relation to international law.

Another distinctive feature of the Court is the process for the selection of its judges. An independent body known as the Regional Judicial and Legal Services Commission, which is independent of the political system of the Member States, appoints the judges of the Court. This is the first time that a judicial appointment commission has been used in the international courts.

Such a radical deviation from the international custom has its roots in the general scepticism of the people of the region regarding the potential effectiveness of the court and the need to ensure that the court is not subjected to the manipulation of the political powers that be.

This paper will consequently highlight the unique nature of the court, with a brief look at how it differs from the established European Court of Justice. The aim is to provide an overview of the similarities and differences between the two judicial systems.

http://www.allacademic.com/meta/p_mla_apa_research_citation/1/7/7/7/4/p177743_index.html

The Caribbean Court of Justice and the Growing Influence of Unincorporated Treaties in Domestic Law

Reconsidering Dualism: The Caribbean Court of Justice and the Growing Influence of Unincorporated Treaties in Domestic Law
Author: Aaron, David M.1
Source: The Law and Practice of International Courts and Tribunals, Volume 6, Number 2, 2007 , pp. 233-268(36)
Publisher: Martinus Nijhoff Publishers, an imprint of Brill

Abstract:

In dualist states, international and domestic legal commitments have traditionally existed on entirely separate planes. Despite the evolution of international legal norms since the end of the Second World War, courts in dualist states have continually opposed using international law to interpret domestic legislation. The author suggests that the traditional dualist view, in which international treaty commitments have no domestic effect until incorporated through the dualist state's domestic legislative process, is weakening.

This paper begins with an overview of the monist-dualist distinction in international law and explains dualism's approach to the relationship between domestic and international law. The next section of the paper explores traditional dualist jurisprudence on the role of unincorporated treaties in domestic law and explains why judges have clung to a rigid application of dualism. The weakening of this inflexible approach is then examined, culminating in an analysis of the pivotal recent judgment of the Caribbean Court of Justice in Boyce. This paper concludes that dualism is waning, particularly in cases where domestic law falls short of international human rights standards, as courts demonstrate an increased willingness to use unincorporated treaties as interpretive aids when construing and applying domestic law.

Keywords: DUALISM; MONISM; UNINCORPORATED TREATIES; RATIFICATION; DOMESTIC RECEPTION; INCORPORATION AND TRANSFORMATION; CARIBBEAN COURT OF JUSTICE; INTER-AMERICAN COURT ON HUMAN RIGHTS; BOYCE AND JOSEPH; PACTA SUNT SERVANDA; SOVEREIGNTY

Document Type: Research article
DOI: 10.1163/156918507X217594
Affiliations: 1: London School of Economics; University of Western Ontario

Trinidad AG defends CCJ

Trinidad AG defends CCJ
Thursday December 18 2008

Source: Antigua Sun

PORT-OF-SPAIN, Trinidad (CMC) – Attorney-General Bridgid Annisette-George yesterday pledged support for the Trinidad-based Caribbean Court of Justice (CCJ) after one of her predecessors called for the suspension of the regional court that is intended to replace the London-based Privy Council.

Only Barbados and Guyana are members of the appellate jurisdiction of the CCJ that was established in 2001 and inaugurated four years later to replace the Privy Council as the region’s final court. However, most of the Caribbean Community (Caricom) countries are signatories to the original jurisdiction of the court.

Annisette-George has described as “disingenuous” statements made over the weekend by former attorney-general Ramesh Lawrence Maharaj that the CCJ “has now become a non-starter as most countries in the region cannot get their population to support the abolition of the Privy Council.”

He said regional governments were spending millions of dollars on the CCJ while their citizens “are starving and have poverty problems.”

“So the whole question arises about the relevance of the CCJ,” Maharaj said, adding that in the prevailing economic situation “some effort should be made to suspend its operations and reduce its staff.”

Annisette-George said the CCJ signatories should “corral their populations to support the implementation of the relevant legislation to abolish appeals to the Privy Council,” adding “there “are about 46 matters currently filed before the CCJ–43 are appeals from Guyana and Barbados.”

She recalled that Maharaj was part of the Trinidad & Tobago government that signed the agreement establishing the CCJ, adding that those politicians had “for no justifiable reason become the proverbial turncoats.”

She said the Caribbean and Mauritius were the only remaining bastions of the British court system for appeals, questioning: “Are we going to await eviction from the Privy Council before fully accepting the CCJ?”

Call for supension of the CCJ

Former Trinidad attorney general wants Caribbean court to be suspended
Published on Tuesday, December 16, 2008
Source: Caribbean Net News
By Oscar Ramjeet -Caribbean Net News Special Correspondent

Former attorney general of Trinidad and Tobago, Ramesh Lawrence Maharaj, a Senior Counsel, who is also the opposition Chief Whip, is calling for the suspension of the Caribbean Court of Justice (CCJ).

The Trinidad Guardian reported that Maharaj said in an interview, "The Caribbean Court of Justice has now become a non-starter as most countries in the region cannot get their population to support the abolition of the Privy Council.”

He said that the CCJ was costing regional governments millions of dollars, while citizens of these countries "are starving and have poverty problems”. “So the whole question arises about the relevance of the CCJ," Maharaj added.

The experienced lawyer/politician suggested that, against that background and in the wake of prevailing economic conditions, "some effort should be made to suspend its operations and reduce its staff". He added that regional governments were discriminating against their citizens by treating the CCJ in such a favourable manner.

The CCJ, which has an original and appellate jurisdiction, was inaugurated in 2005 and was supposed to replace the Judicial Committee of the Privy Council in England as the region's final court of appeal. Although 12 countries agreed to the establishment, only two countries, Guyana and Barbados, have formally adopted the CCJ as their final court.

CSME & CCJ Doubts

CSME - more doubts than progress - Now Barbados 'consultation' postponed
RICKEY SINGH ANALYSIS

Source: Jamaica Observer

Sunday, December 14, 2008

AS 2008 draws to a close, it is becoming increasingly evident that there is a serious decline in momentum for the transformation of Caricom into a single market and economy (CSME) by 2015.

When I wrote in the Observer two weeks ago that the CSME appears to have been placed on "a slow march", I was not aware that a stakeholders' consultation on the CSME, scheduled to be hosted this month by the Barbados Government, would not be taking place.

Late last week the Caricom Secretariat and the Barbados-based CSME Unit confirmed that the consultation was off and would now take place on a date to be determined.

Six months ago, at their 29th Caricom Summit, our Community Heads of Government had accepted an offer by Barbados' Prime Minister David Thompson, who has lead responsibility for CSME-readiness arrangements, to host "a wide-ranging consultation in the second half of 2008".
That has not happened. Instead what has been surfacing is more reservations about the CSME, in particular negative attitudes towards intra-regional free movement of Community nationals, which is one of the key segments of the proposed single economy project.

As it is with free movement of even skilled nationals, so also is the case in relation to, for example, justice and governance (including human rights), transportation, tourism and security - lack of an information flow from Heads of Government assigned specific responsibilities in Caricom's quasi-cabinet structure.

There has now been another official signal from the Caricom Secretariat that the member governments intend to give legal status to the 'Charter of Civil Society' in 2009.

The sad reality is that there have been endless promises to do so since the Charter was officially declared with much fanfare 11 years ago, in 1997.

As in the outstanding case for widening membership access to the Caribbean Court of Justice (CCJ), it is to be hoped that the Charter gets the official attention it deserves to become a functional instrument for improved governance in the 15-member Community.

Currently, however, greater concerns relate to the sense of apathy over moving forward with CSME arrangements. Now that the scheduled "stakeholders' consultation" has been postponed, possibly until the first quarter of 2009, an official explanation seems appropriate.

The latest of three former prime ministers to openly lament, within the past month, the "poor" response to advance arrangements for the CSME, is Dr Kenny Anthony of St Lucia.

He has called for urgent and concerted action by all governments of the Community to make a reality of this flagship project, now much more needed, he said, in view of the current global economic crisis.

As previously noted, the former prime ministers of Barbados (Owen Arthur) and Jamaica (PJ Patterson) were equally firm in expressing their own disappointment over the evident lack of serious and sustained action to complete the CSME-readiness arrangements.

A mood of cynicism and disenchantment over lack of action on the "CSME front" could be detected in a number of Caricom states, but it is more pronounced, for different reasons, in Jamaica and Barbados.

Lingering trio

Today there are still Caricom governments that confuse, expediently perhaps, a policy of managed migration - a right that belongs to every Community partner - with their moral and legal obligation to pursue and implement the programme for free movement of skilled nationals, consistent with CSME objectives, as outlined in the Revised Caricom Treaty.

Further, there are three Community countries yet to either begin the implementation process, or signal readiness to confirm with even the unanimous decision by Heads of Government in July 2007 to ensure the upholding by immigration authorities of an automatic right to six-month stay for Caricom nationals on arrival - for whatever reasons - once not linked to any form of employment.

The trio yet to implement that decision are Barbados, St.Kitts and Nevis, and Antigua and Barbuda. The governments in Basseterre and St John's are currently engaged in electioneering politics, and CSME implementation will simply be kept on the back-burner.In Barbados, there are now more expressions of reservation and doubt about the CSME than that of optimism for the value in Caricom pushing ahead towards a seamless regional economy.

Since the hopes raised at the joint seminar in Trinidad and Tobago on plans for the CSME, and the subsequent relevant decisions of the Caricom Summit of 2007 in Barbados, changes in governments in some countries, including Jamaica, Barbados and Belize, are reported to have influenced moves for a review of the implementation programme for even skilled Community nationals "with a view to determining reaffirmation or modification".

Last month the Community's Council for Trade and Economic Development (COTED) decided to establish a "working group" to review and make recommendations for the procedures across the various categories of skilled Caricom nationals eligible for free intra-regional movement.

No explanations were offered as to why this "review" of originally approved "procedures" has become necessary.

In all of this there remains a deafening silence from the prime minister of Dominica, Roosevelt Skerritt, who shoulders lead responsibility for "labour" with a specific focus on free movement of nationals. He is proving quite artful in evading media inquiries about the functioning of his portfolio on free movement in Caricom.

Perhaps there is need for an independent audit to indicate the overall readiness arrangements status by Caricom governments to help make CSME inauguration a reality in 2015.

A relevant view is, if those with lead responsibilities for specific Caricom sectors/programmes - CSME or otherwise - are not sufficiently motivated or interested, they can hardly be expected to provide vigorous leadership to attain desired objectives.

President of the Jamaican Court of Appeal Supports CCJ

High Court judge calls for CCJ

Posted: 2008-12-03

Source: http://go-jamaica.com/news/read_article.php?id=5020

President of the Court of Appeal, Justice Seymour Panton, has called for the abolition of appeals to the United Kingdom Privy Council. He says it is baffling that Jamaica continues to have its final appellate court outside of its jurisdiction.

He made the comment yesterday while responding to glowing tributes paid to him at a dinner held at the Jamaica Pegasus hotel to celebrate his 40th year at the Bar.

He was called to the Bar at Lincoln's Inn, London, England, in 1968.

Justice Panton who is in favour of the Caribbean Court of Justice (CCJ) pointed out that Jamaica was paying 18 per cent of the budget for that court.

He says no one can question the competence of the judges of the CCJ. He also says that Lord Hoffman who sits on some of Jamaica’s appeals in the UK Privy Council has said recently that he could not understand why the island’s final appeal court was in England when it has competent jurists.

According to Justice Panton, Jamaica should not be looking to Europe as its final appellate court, but to the Caribbean. He also spoke out against the high crime rate in Jamaica saying he did not think many of the crimes are committed because of poverty. He points to the ability of some criminals to access expensive weapons with which to carry out their crimes.

Death Penalty and CCJ - Dead issue?

The death penalty debate

Source: Jamaica Observer
Wednesday, December 03, 2008

The much-heralded "conscience vote" has now been held with the result of retaining the death penalty as enshrined in the constitution.

There have been proposals from the opposition party and others for a change in the method of execution to lethal injection, as a more humane method for terminating life. The US Federal Supreme Court recently ruled that lethal injection was not cruel and inhumane, and its use should continue in the administration of the death penalty.

The method of execution was not generally questioned by observers because it is solely extinguishing the life of a convicted murderer that provides justice for the victims and their families. The finality of execution which is irreversible was complained of, but failed to acknowledge that the same absolute finality applies also to the victims.

The views in the media make it abundantly clear that after the extreme and exaggerated nuances are overlooked, the driving force behind the death penalty is to provide justice for those who were brutally killed and for their families. The death penalty provides equity through the application of the principles of justice by upholding the law of the land.

Capital punishment has been described as "cruel and inhumane". Consider a recent case when three children were savagely murdered in one evening. The last victim, a young girl, pleaded with her attacker not to kill her. His response was to disembowel her! That illustrates by any standard, "cruel and inhumane" treatment in the extreme, deserving the full punishment available under the law.

Do we wait for the advent of Republican status before dispensing with the UK Privy Council as the final arbiter, or would Jamaica accept the CCJ as the final court of appeal?

Universally there was a large measure of agreement in the media, concerning three areas in the criminal justice system requiring remedial action before executions should be resumed. First, reform of the JCF by eradicating corruption. ACP Justine Felice in charge of this task has had considerable success by concluding approximately 50 cases since January. Merging the JCF with the JDF has not found favour for many varied reasons, but what still needs to be considered is possibly transforming the JCF into a paramilitary organisation to better address the terrorist activities of our times.

Also related to the reform of the police force is the necessity for a state-of-the-art forensic laboratory and passing the crime bills before Parliament into law without further delay.

The provision of a forensic laboratory would surely find traction with major donors, and should be pursued with the utmost despatch. Likewise, the creation of Special Weapons, Arms and Tactics (SWAT) Teams to operate in the cities requiring urban close-quarter tactics to provide such skills as house clearing and hostage resolution situations. This would reduce civilian casualties who become victims labelled "collateral damage" because of indiscriminate shooting during engagements with the security forces.

The second major concern expressed was the possibility of jury error, by convicting an innocent man. Much has been said about the release of convicted men on death row in the US, through the use of DNA evidence which proved their innocence. Conversely, the same evidential DNA technique that proved the innocence of the men in the US can be applied proactively in Jamaica, to confirm the identity of the accused related to the crime, in the event of a guilty verdict.

The possibility of jury error resulting in the conviction of an innocent man would therefore be considerably reduced. This technology could be sought from the US authorities, if it is not yet available in Jamaica. It should be mentioned that only relatively few murder cases now warrant capital punishment, which is no longer mandatory for certain homicides such as crimes of passion. This has resulted from a UK Privy Council directive.

The third area of concern voiced in the media was the oft-heard cry: "Fix the justice system!" With the explosive increase in the homicide rate, a separate criminal court could sit when needed, exclusively to deal with cases involving capital murder. It would be exemplary if our Court of Appeal could be similarly equipped to the standard of the Caribbean Court of Appeal in Trinidad, which exhibits the latest equipment and technology that has introduced a superior level of case management in the work of the judiciary. Again the government should prevail on donors for funding as part of capacity-building development assistance in the free trade area negotiations being conducted with our major trading partners. The Caribbean Development Bank could also be a possible alternative source of finance.

Realistically, it is unlikely that any executions can take place for the next 24 months or so because of legal "red tape" which has to be severed locally and internationally before capital punishment can be resumed. Jamaica is signatory to a number of human rights agreements that have to be carefully navigated to avoid any possibility of a breach. There has to be a decision on future referrals to the UK Privy Council. Do we wait for the advent of Republican status before dispensing with the UK Privy Council as the final arbiter, or would Jamaica accept the Caribbean Court of Justice (CCJ) as the final court of appeal? This second course of action is strongly supported by the judiciary as seen at the CCJ seminar held in Kingston during October.

Alternatively like Barbados, a constitutional amendment requiring a two-thirds majority in Parliament could be sought. The eight convicts on death row are likely to have their sentences commuted to life in prison in compliance with the Pratt and Morgan precedent as they have probably been incarcerated for five years or more.

We take this opportunity to congratulate Dr Carolyn Gomes of Jamaicans for Justice, a dedicated and sincere human rights advocate, on being bestowed with the United Nations Human Rights Award for 2008 - a high honour for both herself and Jamaica.

OECS biggest threat to CSME

OECS 'biggest threat' to CSME
Source: Nation Newspaper
Published on: 11/29/08.
by Anmarie Bailey-Blake

FORMER PRIME MINISTER of St Lucia and current opposition leader there, Kenny Anthony, has pointed to five reasons for the stalling of the CARICOM Single Market and Economy (CSME).

Delivering the third Patrick A.M. Emmanuel Memorial Lecture at the Cave Hill Campus of the University of the West Indies on Thursday night, he cited recent changes in governments; the lack of progress of the Caribbean Court of Justice; the ambivalence of the Organisation of Eastern Caribbean States (OECS); Jamaica's lack of commitment and cynicism over the prospect of a political union between the OECS and Trinidad and Tobago as reasons for the lull.

As he called for action from all governments to get CSME going, Anthony referred to remarks from St Vincent's Prime Minister Ralph Gonsalves who said: "The apparent lack of interest by Jamaica is forestalling the creation of the CSME."

The opposition leader added that current Jamaican Prime Minister Bruce Golding also stated that his administration "was not ready to embrace a single economy at this time".

Anthony asserted, "[The] return of the Jamaican Labour Party to office has resurrected fears, doubts ad anxieties about Jamaica's commitment to the CSME. The situation has not been helped."

Describing the attitude towards CSME as apathetic, he referred to an article written by Tony Best, where former Jamaican Prime Minister PJ Patterson said, ". . . I am not sure that the movers and shakers quite realise what are the possibilities which arise from the creation of the single market . . ."

Calling for immediate action on CSME, Anthony said the time was crucial as this crisis had been described by some as the scariest since the 1930s.

"The fractures which now appear in CARICOM could not have occurred at a worse possible time. The region now has to grapple with a global financial crisis."

He also suggested that the OECS shared the blame. "Perhaps the greatest threat to the future of the viability of the CSME, is the ambivalence of the OECS towards CARICOM and the CSME. OECS states continue to be unwilling suitors to the marriage . . . . Across the OECS, it is not uncommon to hear the view that there is nothing to be gained from the CSME."

Acknowledging that the current economic crisis also played a role, he said that rather than stalling the CSME, the crisis should spur the union into action.

Commentary: Is there a future for the Caribbean Court of Justice?

Commentary: Is there a future for the Caribbean Court of Justice?
Published on Wednesday, November 26, 2008

Source: Caribbean Net News

By Oscar Ramjeet It is more than three and a half years since the Caribbean Court of Justice (CCJ) was inaugurated with two countries, Guyana and Barbados accepting the CCJ as the final court of appeal and although seven governments have changed in the region within this period, the number still stands at two, with no other country joining.

We see a change of government in St Lucia, Jamaica, Bahamas, Grenada, Belize, British Virgin Islands and Barbados since the establishment of the regional Court on April 16, 2005, but the new governments have not initiated steps to join the Court. The BVI is a dependent country and is not a signatory to the agreement setting up the CCJ, and Barbados is already a member.

This is very disturbing and what is more troubling is that there is no indication that any other country has expressed its willingness to rid the Privy Council as the final Court and accept the CCJ as the final Court.

I have written several articles asking about the future of the Court. I even suggested that the authorities, maybe CARICOM, seek the assistance of a lobbyist, someone of the statute of Sir Shridath Ramphal, former Commonwealth Secretary General and who served as CARICOM advisor, to woo governments as well as the opposition to join the court, but this has not materialized.

But, instead, steps have been taken by the CCJ to launch a series of public education initiatives to enhance the knowledge of the Bar and Bench in the region and to invite business, labour and members of the public to be part of the exercise.

CCJ judges went to Jamaica and Antigua last month in their education drive to dispel some of the misconceptions of the court's operations. The CCJ was established by CARICOM member states not only as the final Court of Appeal replacing the Privy Council, but to resolve disputes between Caribbean countries that are parties to the revised Treaty of Chaguaramas.

The revised treaty seeks to promote economic integration among the States Parties and to create a single CARICOM Single Market Economy (CSME). Although Antigua and Barbuda, Bahamas, Belize, Grenada, Dominica, Jamaica, Trinidad and Tobago, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, and Suriname have not yet put in place the required mechanism to accept the CCJ as their final court, they can nevertheless use the CCJ to deal with treaty matters and international law issues, but after 42 months only one single CSME issue reached the CCJ.

It is a case filed by the Trinidad Cement Limited and TCL Guyana Incorporation against the Co-operative Republic of Guyana AR 1/2008, an application for Special Leave to appear as parties before the Court.

The question therefore remains is whether the Court is serving very little use. Will it be a white elephant and will it eventually die like The West Indies Federation? A lot of money is being spent on the regional court, which is grossly under-utilised, since only two of the twelve countries are making full use of the court and only a handful of cases, mainly from Guyana, were dealt with.

Funds to operate the well-equipped Court in Port of Spain are administered by a Trust Fund, which has been established and capitalised in the sum of US$100 million by the Caribbean Development Bank, and the CARICOM Secretariat has had indications of interest in contributing to the Fund from sections of the international donor community.

The Heads of Government have mandated Ministers of Finance to provide funding for the recurrent expenses of the Court for the first five years of its operation. The question is what happens after April 16, 2010, the expiration of the five-year period? An eminent Caribbean Lawyer, Dame Dr Bernice Lake, QC, an Anguilla Attorney, told the Daily Observer in Antigua the day the CCJ judges were in Antigua, that regional governments disenfranchised the public when they set up the CCJ without referenda.

Dame Bernice said, "The Caribbean governments have not done what the constitutional prescription envisages" and criticised the regional governments for rushing into the setting up of the court and now essentially leaving the court in limbo.

She added, "I believe that it has been the case that the political leaders who spearheaded this new court have taken the view that this was to be their legacy and they have rushed into without putting into place the underpinnings of education and consultation." It is very unfortunate that the regional court is still limping after such relatively long period.

I have no doubt that the judges would like to have much more work in order to develop a Caribbean jurisprudence since they are better suited to the needs of the Caribbean people because they are grounded in the region.

Dame Bernice suggested that the governments of all countries requiring constitutional referenda should conduct the processes simultaneously in an effort to prevent the result of earlier referenda unduly influencing subsequent ones.

But, in my humble and respectful suggestion, before this can be done, CARICOM should take the lead in this regard by organising with an influential lobbyist to work along with the ten defaulting governments, as well as the opposition, in order to achieve this goal.

Party line and regional unity

United Caribbean: Party line and regional unity
Published on: 11/28/08.
by Michelle Cave
Source:Nation Newspaper ( Barbados)

NOT ONE TERRIBLY KEEN on domestic politicking, I have to admit to being highly surprised and even pleased at the actions last week of the Barbados Prime Minister.

As Mr Barack Obama, the United States president elect, picks his teams, Mr Thompson has seen the wisdom in matching personality to portfolio, a brave and commendable act, surely.
Over the past few weeks, the Bajan public has been regaled with tales of the Federation of the 1950s. The University of the West Indies Cave Hill Campus' Archives Department put on a stellar show with many speaking on implications of the Federation, what we have learnt and what we can apply.

Of course, this is a different world today than in the 1950s, and I would like to think that Caribbean people – as a people, as leaders – have grown since then.

In the 1950s when real, responsible government and real constitutional change were within reach of most of these islands, Federation was the choice the emerging political leaders and the British at home and in the colonies thought of as the best way forward.

Federation would bring the islands together under one political and economic banner. Individual self-government was seen initially as a silly, improbable and impractical way to develop the West Indies or have them interacting in and with the world trading system as it existed then.
The work then was seen to be to weld the diversity of the region into a united nation.

In the 1950s the choice was clear. Caribbean development could follow one of two models of federation: the Australian (weak central authority) or the Canadian/Nigerian (strong central authority).

The Australian model won over and major supports like a federal income tax, which would have made the federal experiment financially independent, was forbidden for the first five years that the Federation existed. Many say this sounded its death knell.

Others said the Canadian or Nigerian models were more appropriate – a powerful central government was needed.

By 1960 though, self-government was within sight, and the conversation of what type of Federation and collective development/government was off the table everywhere – an unnecessary dialogue.

But Sir Shridath Ramphal spoke to this, stating it was alarming and worthy of attention by today's political leaders and those considering contributing to social development via the political domain.

The leaders of the Caribbean at that time, grown out of the union movements or educational opportunities, bandied across the radiowaves insults and jibes at each other, denigrating each other and each other's contribution to the unification process – sometimes with such venom that now it makes one wonder whether we as a people have grown up and are assured enough in our personal and collective power to pool enough sovereignty, hard won as it has been, to a central body, supranational in nature, to make a political, and a monetary union work.

The question that is begging to be asked is this: why has Caribbean unification, the CARICOM Single Market and Economy, the Caribbean Court of Justice, any of the instruments of regionalism, never made the agenda of any political party's election platform in the Caribbean?
Or maybe another question is more appropriate: what will it take for Caribbean unity to be on political parties' agendas? It needs to be if we truly are going to move forward.

Self reliance and the CCJ

Self-reliance and the CCJ

published: Saturday November 22, 2008

Jamaica Gleaner

The Editor, Sir:

I read with a great deal of interest the articles 'What can we learn from the Irish?' by John Rapley and 'Patrick Robinson and the Caribbean Court' by Devon Dick in today's Gleaner (Nov 20).

Mr Rapley made the point that the Irish only started to develop when they abandoned all excuses for their condition and took responsibility for their country.

Mr Dick spoke about some of the brilliant judges Jamaica has produced and wondered why we cannot move from the Privy Council to a Caribbean Court of Appeal. These articles are so closely related that it's almost as if these gentlemen collaborated on them.

The irony of this apparent synchronisation became even stronger when Mr Dick mentioned that it was an Irish company (Digicel) which first had faith in Usain Bolt who has made all Jamaicans (and West Indians) so proud this year.

lack of self-confidence

I congratulate Messrs Rapley and Dick on these wonderful articles. The lack of self-confidence indicated by both gentlemen is indeed our main stumbling block to development. Our failure to take control of our justice system, through the CCJ, is one of the most glaring examples of this lack of self-confidence and dependency syndrome that we have.

Another example, which I will write about at another time, was the question by some Jamaicans as to what Barack Obama will do for the Caribbean. When we become independent, we will realise that the important question is not what Barack Obama can do for the Caribbean, but what he can do to make a safer and fairer world in which we can make our way through our own efforts.

Living in Trinidad, I pass the headquarters of the CCJ every day. Each day, I remember how idle the court is while my final court of appeal remains in the UK - a country I cannot even visit without a visa.

deep sense of shame

I feel a deep sense of shame in our impotence as Caribbean people. If we felt that we were not quite ready to control our justice system, we could, at least, have set a target date for us to achieve independence from the Privy Council.

We have not even do that. And, please don't get me started on my head of state - a wonderful lady who also resides in that wonderful country I cannot visit without a visa. It appears that we intend to remain dependentsforever.

Mr Rapley pointed out that the Irish "were messing up for much longer before they got their act right". I suppose we intend to beat that record.

I am, etc.,

HUGH P. SMYTHE
hpsmythe@gmail.com
10 Schooner Court
Westmoorings
Trinidad & Tobago

IJCHR opposed to amendment of law on death penalty

IJCHR opposed to amendment of law on death penalty
Tuesday, 18 November 2008
Source: Radio Jamaica

Ahead of the conscience vote in Parliament on the retention of the death penalty, the Independent Jamaica Council on Human Rights (IJCHR) is already objecting to a proposed constitutional amendment which could make it easier to carry out the death penalty.

The Judicial Committee of the Privy Council, Jamaica's highest court of appeal, held in the case of Pratt and Morgan v. Attorney General of Jamaica that holding a convicted man on death row for more than five years violated the constitutional prohibition against inhuman or degrading punishment, and that all death sentences should be commuted to life imprisonment.

The former PNP government had contended that it was not possible to carry out all the appeal processes involved in death sentence matters within five years.

Since then, Barbados has amended its constitution to state that a delay in carrying out the death penalty does not amount to cruel and inhuman punishment.

The Opposition in Jamaica has insisted that unless Jamaica enacts a similar provision, the country will not be able to resume hanging, regardless of the outcome of the conscience vote.

The government has agreed to an amendment. With Parliament expected to resume its debate on the matter Tuesday afternoon, the IJCHR says it is opposed to any such constitutional change.

The IJCHR says such a move would dishonour fundamental human rights provisions that the constitution aids in securing. According to Nancy Anderson, Legal Officer for the IJCHR, such an amendment would be a breach of law and Jamaica's international obligations."The proposed amendment would deprive every court, whether a court in Jamaica, Caribbean Court of Justice or the Privy Council of its essential right to enquire into and decide whether a condemned person is being treated fairly in relation to the manner in which the death penalty is being imposed or executed."

Ms Andersons claims that the amendment would conflict with the rule of law and the principles of the constitution of Jamaica.

"This is not only unprincipled, but a dangerous precedent for the executive and the legislature to override judicial decisions which express fundamental principles of the constitution."

Constitutional rights at risk

According to Ms. Anderson, greater emphasis should be placed on making judicial systems more efficient, instead of meddling with the constitution."

We've noticed that there's been considerable attention based on the five year limit as set in the Pratt and Morgan case ... without admitting that the major cause of the delay relates to the inefficiencies of Jamaica's justice system."She is contending that there is no justification for such far-reaching constitutional changes instead of taking the necessary measures to eliminate delays and efficiencies.

"If such important constitutional changes can be made in such circumstances then all our constitutional rights are at great risk."

While addressing party supporters at the party's annual conference on Sunday, Prime Minister Bruce Golding reiterated that the Government would push towards a change in the five year limit for people on death row if the conscience vote rules in favour of retaining the death penalty.

Carribean Unity

Caribbean unity: An idea whose time has come, again

published: Sunday November 16, 2008
Jamaica Gleaner

The momentum of the Organisation of Eastern Caribbean States (OECS) along with the Manning Initiative of recent months towards greater Caribbean unity forces us to consider again whether Caribbean unity is an idea whose time has come, again, with a chance to grasp it this time.

But the signing of the Economic Partnership Agreement (EPA) with Europe even more recently has caused us to ask the opposite, that being, whether Caribbean unity is an idea whose time has gone. A still more recent event, of two weeks ago, forces us to answer that question.

If we expect Barack Obama to help us, we must know what kind of Caribbean we want and how we are helping ourselves. We must know whether we stand together or only pose for pictures together. We must be able to tell Obama if we stand with the United States or Europe on trade issues at the World Trade Organisation in pursuit of a vision of the Americas. We must be able to say if we stand with or apart from the African and Pacific countries as members of the African, Caribbean and Pacific (ACP) countries, especially since Obama will almost certainly establish a bridge with Africa.

OECS momentum

This is the 50th anniversary of the start of that bold experiment, the Federation of the West Indies, the high point of Caribbean political unity. When Alexander Bustamante took Jamaica out of it, the other countries took the sensible view that those among them could still form whatever union they wished. Interest was particularly strong among the 'Little Eight'. By 1966, they had established the West Indies Associated States Council of Ministers and by 1968, the Eastern Caribbean Common Market. By 1981, they had established the Orgainsation of Eastern Caribbean States (OECS). They subscribed to a common currency, central bank, supreme court, political authority of heads of governments, telecommunications authority and civil aviation authority.

They launched a new momentum in 2001. A new draft treaty seeks to create an economic union with the "constitutional, political and economic changes that would be necessary" for this and to meet the challenges of globalisation. The OECS is on the verge of becoming a federal-type political union where the political authority of heads of governments will have the competence to pass legislation that would become law in the member countries.

The federal authority will have competence to decide on matters of the common market and customs union, monetary policy, trade policy, maritime jurisdiction, civil aviation, commercial policy, environmental policy and immigration policy. The heads of government will be supported by a council of ministers and an assembly of parliamentarians elected in the member territories.
The Manning Initiative of August 2008 represents Trinidad's interest in forming a political union with Grenada, St Lucia, St Vincent and the Grenadines and any other country that is interested. There was an earlier 'Manning initiative' of 1992, which sought to join Trinidad, Barbados and Guyana in a political union. Trinidad's petro-power combined with fears that CARICOM might not achieve its single market and economy by a date already postponed to 2015 might be the key new motivators.

Prime Minister Ralph Gonsalves of St Vincent and the Grenadines, himself a key supporter of West Indian political unity, said two things at a lecture at the University of the West Indies on November 3. Should Trinidad join the OECS, it would only be a matter of time before Barbados and Guyana do so. Second, CARICOM's single market and economy, if it should come into being at all, will require the political authority similar to that which the OECS has. Otherwise, the Caribbean Single Market and Economy (CSME) will not work.

Movement for federation

The question of course now becomes, where would all of this leave Jamaica? The Jamaica Labour Party has been opposed to any political union or region building say through the Caribbean Court of Justice and the single economy. The People's National Party (PNP), on the other hand, initially led the movement for federation and remains committed to everything but political union. Yet, globalisation and the special crises of food, energy, crime and climate change have changed everything and Jamaica's inability to stand alone economically suggests that the party must rethink this position. The PNP's progressive agenda must take up, study and canvass the country on the kind of rea-listic political engagement we can have with the rest of the Caribbean.

If the OECS movement is an idea of Caribbean unity whose time has come, then signs suggest that the CARICOM movement is an idea of Caribbean unity whose time might have gone. CARICOM has failed to establish an authority that can implement heads of govern-ment decisions though a CARICOM commission was recommended as long ago as 1992. The single market and economy has been postponed to 2015. But the CSME will falter without the political authority rejected in 1962 and 1992 to exercise competence in common areas across the common territories to make the CSME effective. Furthermore, just in October, CARICOM leaders, led by Jamaica, signed away CARI-COM's economic authority when they signed the EPA which gives Europe the final word on any matter on which CARICOM trade conflicts with the agreement.

CARICOM has opened doors to Europe that it has not opened to the United States. Take the ethanol industry, for example. Jamaica's new ethanol industry has a very important market in the US. The market in the US is guaranteed under the Caribbean Basin Economic Recovery Act (CBERA). The CBERA comes up for renewal in 2010. America's position might be that since we have given Europe access to our markets and accepted that Europe should remove preferences for our exports then it should have these privileges as well. We could therefore lose our CBERA benefits and a minimum ethanol market.

Brazil's investment in our sugar factories and the Petroleum Corporation of Jamaica was promising because its ethanol production in Jamaica could get access to the US market under the CBERA and make up the quota that we cannot fill at the moment. But, if the US terminates the CBERA for a free-trade agreement with Jamaica, as some fear it will, then Jamaica would be of no advantage to Brazil, and Brazil will lose interest in the sugar cane industry, if it has not begun to do so already. Brazil, remember, cannot export ethanol to the US without facing high tariffs because of US protectionism. Even if the US is sympathetic to Jamaica, it would be conceding its market to Brazil through the back door of the CBERA and its powerful ethanol producers would be angry. Obama has already said he stood for energy independence, which means supporting local ethanol producers against competitors like Brazil.

Integration

Jamaica should tie its fortunes to energy giants like Brazil, Venezuela and Trinidad. But, they are moving towards closer integration, while Jamaica is moving towards greater disintegration. Caribbean unity is a strategy for survival by making alliances with each other and with states that are going to be important in the new global order that is taking shape. If we have been on the wrong side of history we need to get on the right side of the future.

Robert Buddan lectures in the Department of Government, University of the West Indies, Mona. Email: Robert.Buddan@uwimona.edu.jm or columns@gleanerjm.com

Opposition ties Privy Council issue to death penalty vote

Hanging knot - Opposition ties Privy Council issue to death penalty vote

Source: Jamaica Observer

Publication date: November 12, 2008

The Opposition will today seek to push its long held position for Jamaica to discontinue appeals to the United Kingdom Privy Council when legislators meet to take a conscience vote on capital punishment in the House of Representatives.

Opposition MP Robert Pickersgill signalled his side's intention when he told the House yesterday during the opening of the debate that the Opposition would propose an amendment to the Constitution that could, if accepted, make the Governor General's Privy Council the island's final appeal court.

The change, Pickersgill said, would ask that the "Constitution of Jamaica be amended to remove the five-year stricture in relation to the carrying out of the death penalty after conviction, and also that the rulings of the Governor General's Privy Council concerning the prerogative of mercy cannot be inquired into in a court of law".

The proposed amendment will likely trigger heated debate, as the Government has not changed its position that voters should decide whether to discard the UK Privy Council for the Caribbean Court of Justice (CCJ).

In June 2003, Jamaica formally signed on to the CCJ, which has been mired in political controversy since it was first proposed.

However, in February 2005, the UK Privy Council, on a case mounted by the then Opposition Jamaica Labour Party (JLP) and civil society groups, ruled as unconstitutional, the route taken by the Jamaican Government to establish the CCJ as its final court.

The law lords held that while the Government could end appeals to the UK-based court by a simple parliamentary majority, special procedures were required to entrench the CCJ as a court superior to the Jamaica Court of Appeal.

The implication is that establishment of the CCJ as Jamaica's final court will require either a two-thirds majority in both houses of Parliament and/or the winning vote in a referendum.

Yesterday, the Government, now formed by the JLP, pointed to the issue, saying that the Opposition's proposed amendment appeared to be an attempt to replace the Privy Council as the country's final court of appeal. But Pickersgill suggested that this would be the basis on which the Opposition will vote today.

"The Opposition contends that this motion before us as worded and tabled really represents a treading of water: it takes us nowhere," Pickersgill said.He said that, unless some specific undertaking is given by the Government, in this Parliament, as to what it intends to do in the event of a vote for the retention of the death penalty, it did not make any sense to continue with the debate."This debate and conscience vote would amount to nothing more than a grand public relations attempt signifying nothing," he said. "The way they are going, the Privy Council is going to find an excuse. The goal post is shifting."

Prime Minister Bruce Golding said that the Government did not accept that it was impossible to complete all the necessary processes leading up to the punishment within five years."Therefore, we do not accept that the only way that capital punishment can be imposed is by going the Barbados route to avoid the Pratt and Morgan strictures," Golding said, referring to the Privy Council ruling that prohibits persons being put to death if they have been on death row for more than five years."There is no person on death row now who has exhausted his right of appeal. Of the eight of them on death row, every one of them still has time to go," Golding said. He said that the Government is introducing technology to speed up the process.

Suriname - Guyana Dispute

This latest Suriname-Guyana row

Published on: 10/28/08.

Source: Nation News - Barbados

ONCE AGAIN, a dispute has arisen between Guyana and Suriname, two neighbouring states of the Caribbean Community, over alleged violation of territorial space; and once again CARICOM is faced with the challenge of helping resolve the row, consistent with the spirit and letter of the Revised Treaty of Chaguaramas.

In June 2000, when a Suriname gunboat forcibly evicted a Canadian oil company, CGX Energy, from carrying out off-shore drilling operations in the Corentyne River, on the basis of licence issued by the Guyana Government, CARICOM had warned against the implications of such an unprecedented action by a member state.

Its offer to play a mediating role was rebuffed by Suriname and, eventually, Guyana felt compelled to seek a more far-reaching and definitive resolution to a recurring problem over territorial rights. It opted to go the route of the United Nations Convention on the Law of the Sea (UNCLOS). The initiative resulted in an historical ruling through arbitration last year that predominantly favoured Guyana' case, in delimitation of maritime boundaries.

Then came the recent surprising development to once more disturb Guyana-Suriname relations. This time it had to with the seizure on October 13 by Surinamese military personnel of a Guyanese cargo ship transporting sugar, for allegedly steering into what Suriname claims to be its portion of the Corentyne River. Guyana has rejected this claim as being legally baseless, contending that the vessel was in "international water" along a route often traversed.

The captain of the cargo vessel, Arnold Garraway has been reported in the region's media as saying that for three years now he has been travelling along the same route in the Corentyne River.

Regrettably, as tension rises over this latest incident to aggravate relations between two CARICOM states that share much in common, there is yet to be a meeting at the level of heads of government to produce a satisfactory explanation of what really went wrong when the cargo ship Lady Chandra was seized.

Not only are both Guyana and Suriname members also of the Association of Caribbean States and the 12-nation Union of South American Nations, they are signatory partners to the Revised CARIOM Treaty which has numerous provisions for the peaceful settlement of disputes.

Ultimately, if they so choose, a dispute between member states could be referred for a ruling by the Caribbean Court of Justice (CCJ) which has original jurisdiction on dispute settlement. First, there must be an official notification by the relevant parties of the dispute to be resolved.

It is to be hoped, therefore, that fresh efforts will speedily be made by the governments in Paramaribo and Georgetown to settle the dispute at hand, knowing that they could also access the dispute settlement mechanisms afforded by the CARICOM Treaty.