Justice Wit on Constitutional Issues

Travel Ban

Source: The Daily Herald ( St Maarten)http://www.thedailyherald.com/news/daily/k190/edit190.html

Date of Publication: December 28, 2007

There are not many who question rulings of the High Court in The Hague, the highest judicial entity in the Dutch Kingdom that has no appeal possibility. Judge Bob Wit, a former member of the Joint Court of Justice of the Netherlands Antilles and Aruba, now on the Caribbean Court of Justice, chose to do so (see page 4 of Thursday’s paper - below ). That may not come as much of a surprise, because Wit is known as a rather outspoken member of the judiciary. His recent suggestion that it would be better to have a judicial entity check laws passed by Parliament to see if they comply with the constitution, the Kingdom Charter and international treaties when Curaçao and St. Maarten obtain country status caused quite a stir.

The judge’s reasoning is that the politicians can’t always be trusted to do it themselves, often because of local or other interests. At the current island level the Lt. Governor, as an impartial crown-appointed official, can prevent such situations at an early stage as a member of the Executive Council, but with country status the Governor is not part of the Council of Ministers or Parliament and can take corrective action only after the fact.

Not surprisingly, the most objections to the idea came from politicians, officials involved in the process of constitutional change and other legal experts, who argued that it would undermine democracy, because such matters should be left up to elected representatives rather than the court.

Both sides of the argument have some merit, but in his latest criticism of the High Court’s decision to disallow the Antillean travel ban and confiscation of passports of drug couriers, the honourable judge has a point. He should know, because he imposed the travel ban in June 2004 as alternative to deal with the growing number of drug couriers that the prison system simply couldn’t handle.

It’s also good to remember that it was the Netherlands which was most concerned about the drug transports and not only placed body scanners in the departure halls at the airports of the islands, but started the so-called “100 per cent controls” at the arrival hall of Schiphol Airport. These controls were experienced as unpleasant by regular travellers and, meanwhile, aspects of them have been declared unlawful by courts in the Netherlands as well.

What is likely to happen now is that to create cell space for drug couriers, other convicts will probably end up getting even more sentence time reduction, a practice many already consider unjust and no help in combating crime. Judge Wit says there is indeed jurisprudence on setting special conditions to stop convicts from repeating their crime that may also infringe on civil liberties, for the common good.

We agree wholeheartedly. For example, the practice of keeping track of convicted sex offenders and informing the communities they are in of their presence is well established in many countries. With all due respect, in appears the High Court should have given this matter more thought.

See also : Judges are better suited to supervise Politicians : http://www.thedailyherald.com/news/daily/k134/wit134.html

Judge Bob Wit weighs in on Constitutional issues

Former judge of the Common Court of Justice of the Netherlands Antilles and Aruba Bob Wit champions the idea of adopting a constitution that is truly the supreme law of the land and charging the judiciary with the duty of upholding that Constitution.

“Should our politicians be supervised by Dutch judges or Dutch politicians and bureaucrats? I would choose the judges, as they are at least bound by our laws, and for many more reasons,” Wit said in a lecture at University of the Netherlands Antilles on the occasion of the launching of the new Dutch Caribbean Human Rights Committee.

In his speech entitled “Taking ownership of human rights: towards a maturing Dutch Caribbean,” Wit who is a judge on the Caribbean Court of Justice in Trinidad and Tobago, said the restructuring of the Netherlands Antilles was all about the furthering of a fundamental right its inhabitants have: The right to self-determination, the very first right mentioned in the International Covenant on Civil and Political Rights, a human rights treaty to which the Netherlands Antilles is a party.

According to Wit, it has to be accepted by all politicians, current and future, that they must be closely monitored in the way the ply their trade. “This is not just a demand made by the Dutch Government, it has also more importantly been demanded by the people,” he said.

The Dutch constitutional model, he said, is not suited to the Dutch Caribbean. It may be a good model for the Netherlands, but it’s not for the small scale societies. “The Dutch parliamentary system has been effective in the Netherlands because, at least in the past, the Dutch parliamentarians had enough integrity and knowledge to carry that system.”

However, experience has taught the Antilles, Wit continued, “that this is not the case with us. The Dutch position that we as citizens of the Dutch Caribbean have to be protected against the possible excesses of our very own politicians is correct.”

The solution to that problem, according to Wit, is not to give Dutch politicians and bureaucrats the power to supervise our politicians and bureaucrats. “The solution lies with the citizens of these islands, who must have more tools to keep our politicians in check.”

These tools should be provided by the constitution, he said, by adopting a constitution that is truly the supreme law of the land and charging the judiciary with the duty to uphold that Constitution entirely, and not part of it, so as to offer the full protection of the law.

This is not to give more power to the judges or to establish judicial supremacy, but simply to give power to the people themselves, Wit said.

“After all, even under a constitution that is supreme and wholly reviewable, the initiative to take steps against the government of the day lies not in the hands of the judges, but in those of the citizens themselves.”

Examples Wit gave for guarantees that would not exist if the constitution were not wholly reviewable were that the General Audit Chamber and the Ombudsman, institutions designed to monitor and possibly correct the executive government, would be virtually meaningless without an additional provision demanding efficient output from these institutions and ensuring that government provided them with sufficient means, financial and otherwise, to discharge their duties in a proper and timely manner.

“But even if such provision is made, it would be irrelevant if it could not be enforced if and when the government failed to comply.”

Another example he gave was the requirement that government has to present a yearly balanced budget. “If you think that such a provision would be able to stop the government from messing up our public finances ever again, you are wrong.”

In the first place, Wit said, the fact that the budget would be prepared according to norms the islands do not yet know and that can be established with a simple majority in Parliament does not sound very reassuring.

“Secondly, even if the government would bluntly present an unbalanced budget, probably claiming force majeure, this would have no effect whatsoever, because when constitutional review is not possible, ordinances that violate the constitution cannot be struck down.”

If, however, the islands would embrace the constitution as their supreme law with full judicial review – as St. Maarten has done – they would require having a much closer look at their constitution before adopting it, according to Wit.

“It is then that we cannot sprinkle our constitution with fancy ideals and hollow phrases anymore.”

Furthermore, he said the new constitution should not only be a supreme document, it should also be a defining document enshrining the many human rights that exist in the world. In this context, Wit said the most fundamental human rights as laid down in the two important general human rights treaties, the International Covenant and the European Convention of Human Rights, should be included.

Another right that should be considered, according to Wit, is the prohibition of slavery and the slave trade in all their forms

Opposition Blocks CCJ Bill - Belize

UDP says nay to CCJ

Source: Belize News

http://www.amandala.com.bz/index.php?id=6427

Published: 21/12/2007

Attorney General, Honorable Francis Fonseca, called the UDP all kinds of less than flattering things for their past reluctance to follow the PUP lead on the CCJ (Caribbean Court of Justice) bill. Maybe the spleen was also for foreseen intransigence on the UDP’s part once again. But, we have to wonder how serious the government was about getting the CCJ bill, which would have made that body the final appellate court for Belize, passed into law in the House on Wednesday, December 19, 2007.

Ordinarily the ruling PUP would have needed only one swing vote from the Opposition’s side of the House, but with two of their own (Honorable Ainslie Leslie, and Honorable Marcial Mes) missing, they had to call on three Opposition members to break ranks to give the bill the needed three-quarters majority to make it law*.

Outside of ire directed the UDP’s way, the AG found time to give a brief history of the CCJ, beginning from a call in the Jamaica Gleaner way back at the turn of the last century. He described the CCJ as “a unique judicial institution”…”relevant to the region”…a body designed to be an arbiter of economic disputes in the Caribbean. With the Caribbean Single Market Economy (CSME) coming to the fore, the CCJ was necessary - “the ideal institution” to realize harmonious judicial interpretation.

And there was no fear that the judges at the CCJ would be biased because the court would realize its sustenance from a trust fund set up specifically for that purpose. Don’t be on the “wrong side of history again,” he warned the UDP. “Will Her Majesty’s Loyal Opposition continue to shamelessly hang on to the coattails of the Privy Council and continue to question the capacity of Caribbean Judges vis-à-vis their British counterparts?” he asked. “Abolish the Privy Council, bring on the Caribbean Court of Justice!” the AG concluded.

Shadow Minister of Education, Honorable Patrick Faber, the first to respond to the Attorney General, charged him with “attacking the Opposition before he can even find out what position we are going to take…” But the UDP was about to take the same position they had the last time the CCJ bill was brought to the House. Honorable P. Faber accused the government of “acting in bad faith,” of “trying to railroad the people,” and questioned why the Coast Guard Bill, a bill that the UDP had no problem in supporting, had been tied in to the CCJ Bill.

Honorable Michael Finnegan said that the government had no leg to “talk about law and order when your AG (former Attorney General, Richard Bradley)” had orchestrated the “removal of Chief Justice (Justice Manuel Sosa) from the Supreme Court.” He called the PUP a “hypocritical government” that “respect(ed) orders from the Supreme Court only when it suit(ed) them.”

Honorable Ralph Fonseca called the UDP’s statements “absolute nonsense.” “Only your leader (Honorable Dean Barrow) has no problem with the Privy Council,” he said, and warned that the UDP was “going to go down in history with severe black eyes,” if they rejected the CCJ Bill and the Coast Guard Bill. Honorable Jose Coye pleaded: “Let those of the same environment…be the final judges for us.”

And Prime Minister Musa accused the UDP of being an “Opposition that doesn’t really understand its identity.” The UDP were “against Central America,” he said, and “now they are showing they are against the Caribbean.” This decision to sign on to the CCJ was “born out of history,” and “the time has come to remove the umbilical cord…” he implored the House.

All 19 government representatives in the House voted aye. But the three-quarters majority needed to carry the CCJ bill failed once again as the UDP representatives stood against, all 8 of them voting nay.

P. S. In a telephone interview this afternoon, Honorable John Saldivar, the Area Representative for Cayo South, told us that to his knowledge a vote in the House for a constitutional change would have to have reflected a three-quarters majority of the present membership of the House, 29. Thus the PUP would have needed 3 UDPees to bolt on Wednesday to pass the CCJ bill into law.

Tenure of President of the CCJ

Bill to extend tenure of judges at CCJ laid in National Assembly
Wednesday, December 5th 2007

Source Stabroek News

Three protocols to modify the provisions for extending the tenure of judges of the Caribbean Court of Justice (CCJ) in special circumstances are among amendments to the Agreement Establishing the CCJ Bill 2007, laid in the National Assembly recently.

According to the last of the three protocols, this means that the tenure of the president may be extended, in special circumstances, beyond the date on which he attains the age of 75 or the date on which he completes seven years in office, whichever occurs first. And, in the case of other judges, not beyond the date on which he or she attains the age of 75 years.

The agreement establishing the CCJ provides that "a judge of the court shall hold office until he attains the age of seventy-two years."

Attorney General and Minister of Legal Affairs Doodnauth Singh presented the first protocol which contained provisions to ensure that sound arrangements for the administration and financial sustainability of the court are provided for; to clarify the circumstances governing withdrawal from the agreement; and to provide for the relationship between the original jurisdiction of the CCJ and the constitutional order in the respective jurisdiction.

In terms of modifying the provisions in respect of the tenure of the judges of the CCJ, the bill proposes that subject to Article IV, paragraph 6, the president shall be removed from office by the Heads of Government (HoGs) on the recommendation of the Commission of the CCJ, if the question of the removal of the president has been referred by the HoGs to a tribunal and the tribunal has advised the Regional Judicial and Legal Services Commission (RJ&LSC) that the president ought to be removed from office for inability or misbehaviour referred to in paragraph IV of the agreement.

Paragraph 6 as in the original agreement now states that "The President shall be appointed or removed by the qualified majority vote of three quarters of the Contracting Parties on the recommendation of the (RJ&LSC)."

Subject to Article IV, Paragraph 7, a judge other than the president shall be removed from office by the RJ&LSC if the question of the removal of the judge has been referred by the RJ&LSC to a tribunal and the tribunal has advised the commission that the judge ought to be removed from office for inability or misbehaviour referred to in paragraph 4.

Other provisions in the first protocol dealt with rules of the court governing original and appellate jurisdictions in relation to the president consulting not less than two and no more than five other judges of the court, selected by him, in establishing rules for the exercise of the original jurisdiction and, "for regulating the practice and procedures of the court in the exercise of the appellate jurisdiction conferred on the court and, in relation to appeals brought before the court, the practice and procedure of any court in respect of such appeals."

It also provides for financial arrangements such as the expenses of the court and the commission, the cost of the maintenance of the Seat of the Court and the remuneration and allowances and other payments referred to in the agreement establishing the CCJ, to be borne by the contracting parties in such proportions as may be agreed by the contracting parties and as set out in the annex to the Revised Agreement establishing the CCJ Trust Fund. But another provision ensures that the salaries and allowances payable to the president and other judges of the court and their other terms and conditions of service shall not be altered to their disadvantage during their tenure of office.

The bill also said that subject to the agreement and with the approval of the HoGs, the Commission shall determine the terms and conditions and other benefits of the president and other judges of the court.

The first protocol also provides for the withdrawal from the agreement, as well as the relationship between provisions on the original jurisdiction of the CCJ and the constitution of the states parties, signature to the protocol by the contracting parties, ratification of the protocol and entry into force.

The second protocol deals with amendments relating to the security of tenure of RJ&SC and the third with the agreement establishing the CCJ in relation to the tenure of judges of the court.

The Root of the Problem

A merry-go-round on republic
by Rickey Singh
Sunday, December 02, 2007

Source: Jamaica Observer

THERE is a curious political game being played out in a number of Caribbean Community states, including Jamaica. It ensures that while no political party or civil society group advocates retention of the monarchical system of governance, there remains an absurd reluctance for change-over to democratic republican status with a non-executive president as head of state.

Therefore, 45 years after British colonial rule started crumbling in this region, first in Jamaica - which likes to point to a robust quality of its sense of nationalism and patriotic spirit - political divisions help to keep a closed door to republican status with a Jamaican, not a British monarch, as head of state.

Barbados, which often proudly reminds us of having the second oldest parliamentary tradition in the Western Hemisphere, continues to flip-flop on the issue of a national referendum to determine whether it should usher in the republican model with a non-executive head of state.

Back on January 23, 2005, Prime Minister Owen Arthur had boldly announced that Barbados "will be a constitutional republic" by the end of that year. It simply didn't happen, but there have been expedient mutterings about proceeding through the route of a national referendum on the issue.

Having been conveniently pushed aside since then, the file was reopened with last week's announcement by Deputy Prime Minister Mia Mottley that a referendum on republic status would take place simultaneously with the forthcoming general election.

Three of dozen

Among the dozen independent English-speaking countries of our 15-member Caribbean Community, just a paltry three have parted company with a monarchical system that retains as symbolic head of state the still enduring Queen Elizabeth II.

The trio are: Guyana (as a parliamentary democracy with an executive president, like the USA); Trinidad and Tobago; and the Commonwealth of Dominica (both republics with the non-executive presidential model).

The Caricom dozen are among a lingering 16 of the 53 member states of the Commonwealth that still retain the British monarch as their head of state. It is to be wondered how many of their nationals regard this situation as a matter of national pride?

Two years ago, when the People's National Party (PNP) administration of then Prime Minister PJ Patterson was still in its fourth consecutive term, and the Barbados Labour Party (BLP) of Prime Minister Owen Arthur was continuing its third term, there were comparatively muted debates on constitutional changes in favour of republican status.

In Jamaica, debates were partly stimulated by constitutional amendments that had facilitated the historic third-term development when Patterson and his Cabinet colleagues took, for the first time, their oath of allegiance to Jamaica and the "Jamaican people", thereby breaking with the old colonial tradition of an oath of allegiance to the Queen.

That historic constitutional step, however, had also revealed the lack of a political appetite to move the process towards termination of the monarchical system, even if it meant linking the issue with a referendum to coincide with new national elections - as Barbados is now, once more, promising to do.

If fear over future access to the Privy Council as Jamaica's final appellate court was a problem in a referendum route, then Trinidad and Tobago had, as long ago as 1976, shown that the two did not have to be linked, as that twin-island state comfortably changed status, by consensus, as a democratic republic headed by a national as non-executive president.

Two years later, in 1978, Dominica did the same when it uniquely moved out of colonial status into independence as a parliamentary democracy with its first national as head of state and no longer a British monarch.

Playing 'footsy'

Both the PNP and the Jamaica Labour Party (now the governing party with Bruce Golding as prime minister), have been playing footsy on changing from monarchical to republican status.

Last week's announcement by Barbados' Mia Mottley - once again in a high-profile media spotlight - that arrangements would be made for a referendum on republic status to coincide with voting at the coming general election has highlighted the ongoing political merry-go-round on this issue.

A lot of watchers of Caribbean political developments must be baffled that in this seventh year of the first decade of the 21st century, perceived sophisticated multi-party parliamentary democracies in Caricom, such as Barbados and Jamaica, really need to have a referendum on whether to shake off the monarchical system of governance in favour of a parliamentary democracy with nationals as head of state.

They seem afraid, though it is not clear of what, particularly in Barbados, which has already taken the crucial decision to part company with the Privy Council in London. It is a position on which today's ruling JLP may want to delay for as long as possible.

In Barbados, going very softly on the republic issue could be a misjudgement of the mood of the Barbadian people by the two traditional contenders for state power - the Barbados Labour Party and the Democratic Labour Party.

After all, the last Constitutional Review Commission had reported back in 1998 that it received no written submissions or calls during public hearings against a constitutional change in favour of republican status.

The overall scenario, therefore, across the independent member states of Caricom, as we head towards the end of 2007, is that apart from three, all remain with a British monarch as their symbolic head of state.

Further, ALL except Barbados and Guyana are yet to show ANY real interest to sever ties with the Privy Council and access the Caribbean Court of Justice as their final appellate institution.

Jurisdiction of the CCJ

Caribbean Court will draw widely from other jurisprudence

Stabroek News - Georgetown,Guyana
by Oscar Ramjeet

Friday, November 16th 2007

One of the judges of the Caribbean Court of Justice (CCJ) has been explaining to law students of the Nova South Eastern University in Florida, Caribbean lawyers and members of the St Vincent Association of South Florida, the structure of the CCJ and its role in the region.

Justice Adrian Saunders said at the recent gathering that the CCJ is probably the only court in the world that is both the final domestic appellate court for a country and at the same time, the court that interprets and applies a treaty promoting regional economic integration to which the country is a state party.

The Vincentian born judge said, "many areas of law today and human rights law in particular, are becoming globalised. This began with the UN Declaration and has continued with a number of other international treaties."

The CCJ, Justice Saunders said, therefore intends to draw on the jurisprudence of the entire civilized world as potential sources for the advancement of our own jurisprudence. He pointed out that in its recent judgments, the CCJ in arriving at its opinion, relied on learning from the courts of the United States of America, Britain, South Africa, New Zealand, Australia, India, Canada, Mauritius, the Solomon Islands as well as jurisprudence from the Inter-American Court of Human Rights and other international bodies.

He explained that Caribbean jurisprudence and its promotion are not just about civil and criminal disputes and matters of public law. The CCJ also exercises an original jurisdiction since the court is charged with the responsibility for resolving disputes between Caribbean countries that are parties to the Revised Treaty of Chaguaramas. The Revised Treaty, he said, seeks to promote economic integration among the states and to create a Caricom Single Market and Economy, much like European states have done with the European Community.

Great interest, Justice Saunders said, has been shown in the mechanisms designed to promote the independence of the court. Funding is provided through a trust fund, which has been established to guarantee the financial security of the court without making the court dependent on the governments for its funding.

Judges, he added, are appointed after care has been taken to avoid political involvement. The judicial positions were widely advertised and the appointments made by a regional commission comprising a wide cross-section of representatives of professional bodies.

The distinguished jurist added that the CCJ seeks to replace as our final appellate tribunal, judges from Britain with judges who have their fingers on the Caribbean pulse and who are in a much better position to pursue the goals of a final court in a more nuanced manner. He pointed out that the "establishment of the CCJ provides a platform for Caribbean jurisprudence to advance in a more wholesome manner and be better suited to the needs of the Caribbean people because responsibility for its development is beng placed in the hands of judges grounded in the Caribbean".

Only two countries, Barbados and Guyana, have signed on to appellate jurisdiction of the court since the other countries have to put in place the requisite constitutional arrangements to remove the Privy Council as the final court and substitute the CCJ.

Trinidad & the CCJ

Electoral system, Manning /Panday politics, and CCJAnalysis
Rickey SinghSunday, November 11, 2007

Source: Jamaica Observer

In addition to returning Patrick Manning's People's National Movement to power and thereby breaking the defeat syndrome for incumbent parties, four of them in a row over the past 11 months, last Monday's election in Trinidad and Tobago seems to have conveyed at least four related clear and important messages.

First, the current electoral system of first-past-the-post needs to be changed so as to ensure fair democratic parliamentary representation, not now guaranteed by the winner-takes-all system that continues to frustrate hopes of tens of thousands of voters seemingly quite tired of a restricted two- party dominance.

As shown by striking examples in Caricom states like Jamaica and Barbados, third parties, however impressive their leadership, potential as an alternative force and quantity of votes secured, end up getting nowhere to ending two-party dominance, in the absence of a proportional representation electoral system.

The second message would be that the 75-year-old Basdeo Panday, undoubtedly the most charismatic politician the country has known for some three decades, and the first Indo-Trinidadian to be prime minister of the twin-island state, has overstayed his leadership of the party he built and took twice to power, the United National Congress (UNC).

He should now seriously make way - the sooner the better - for a more credible leader of the once solid mass support base the UNC had, and which has been systematically eroded with the most severe challenge posed at Monday's election by Winston Dookeran's 13-month-old Congress of People (COP).

Third, Manning should endeavour, now in his third successive stint as prime minister, the first of nine months having resulted from a controversial decision by ex-President ANR Robinson and not the electorate's verdict, to resist theatrical politics as a substitute for meaningful national consultations on fundamental national issues.

Theatrical politicsThe latest display of such politics in his past six years as prime minister was Manning's out-of-the-box decision last Wednesday to celebrate the PNM's landslide 26-seat victory for the new 41-seat House of Representatives, by arranging for the oath-taking ceremony as prime minister to be a public event at Woodford Square.

Made famous by the legendary Eric Williams, Woodford Square, in the heart of Port-of-Spain, has remained a traditional political stomping ground of the party and a symbol of PNM's dominance of state power since 1956 in a society with entrenched social/racial and political divisions.

For Manning, therefore, to have President George Maxwell perform the oath-taking ceremony at Woodford Square, instead of at the president's official residence, as a gesture to "bring government closer to the people", as he claimed, was simply ridiculous.

Quite legitimately, it was a celebratory occasion for the victorious PNM, and nothing to do with "bringing government closer to the people". A "thank-you" mass rally at the same place, immediately after he had been sworn in as prime minister would have been quite understandable by friends and foes.

All sections of the multi-ethnic, culturally diverse society would be aware that although the PNM has been successively heading governments, since 1986, with minority popular votes including the current one formed on Thursday, but with workable parliamentary majorities, the party deserves to celebrate its triumph at last Monday's poll.

For Monday's election, the combined popular votes of Panday's UNC and COP totalled 342,466 (a plurality of 42,813), or 52.38 per cent, compared with the PNM's 299, 813 or 45.85 per cent. But a Woodford Square oath-taking ceremony?

In its editorial last Thursday, entitled Nation-building challenge for PM, the Trinidad Express noted that it was "surprising" that Manning chose to have the oath-taking ceremony at Woodford Square.

"Symbolism", the newspaper said, "plays a great part in politics, not only here but elsewhere; and one has to wonder what was the received message by the tens of thousands of Trinbagonians who voted against the PNM, most of the population having voted against rather than for the party which, under our first-past-the-post system, now enjoys a legitimate hold on power..."

CCJ - UNRESOLVED

The fourth message points to the dilemma that the Caribbean Court of Justice (CCJ) continues to face in having to function as a regional appeal court headquartered in a Caricom state where ruling and opposition parties cannot resolve differences to access it as their final appellate institution to replace the Privy Council in London.

Manning's new 11-seat majority in the new parliament is not sufficient to empower the PNM to go it alone in accessing membership of the CCJ and cut links with the Privy Council.

Electoral system

The immediate issue of importance for active consideration, however, would be for the political parties, representative organisations and institutions to focus on the need for electoral reform, possibly within the wider context of constitutional reform.

Such a development could end the charade of a "parliamentary democracy" that resulted at Monday's election with the COP securing 148,041 votes (23 per cent in a 56 per cent voter turnout) but failing to win a single seat.

A change to the corrective system of proportional representation, on the other hand, could ensure more diversified representation without necessarily resulting in feared racial/class divisions and political instability.

Guyana, Caricom's other major plural society, serves as an example. At its 2006 general election, for instance, while the governing People's Progressive Party and the main opposition People's National Congress maintained their respective dominant positions, a new Alliance For Change (AFC) party, with a comparative history like COP in Trinidad and Tobago, succeeded in winning five seats in the 65-member parliament with just over 28,000 votes or 8.04 per cent.

The bitter experience of Monday's election in Trinidad and Tobago for the COP had been suffered 26 years earlier by Karl Hudson-Phillips' Organisation for National Reconstruction (ONR) in 1981, when it polled some 91,000 votes but was denied a single seat, in the absence of the PR electoral system.

Apart from consideration of promoting a change in the electoral system, for which a very strong argument exists in Trinidad and Tobago, the immediate challenge for the main opposition UNC should divest itself of its expedient pre-election "Alliance" component and pursue a thorough critical reassessment of its leadership and management structures in preparation for bidding farewell to its "silver fox" leader, Basdeo Panday.

It was laughable to see an angry Panday verbally lampooning COP's Dookeran, a once erstwhile party and Cabinet colleague, for the electoral defeat they both suffered by the PNM.

Objective analyses would point to many of the UNC's problems having to do with Panday's politics, following the 2001 general election, including the politics that led to a breakaway faction led by Dookeran, which subsequently spawned the COP.

Honorary Doctor of Laws conferred on Justice Desiree Bernard, JCCJ

Females outshine males at UWI
Trinidad Newsday - Port of Spain,Trinidad and Tobago.
Published: Nov. 4, 2007

Justice Desiree Patricia Bernard, the first female judge of the Caribbean Court of Justice, will be awarded the Honorary Doctor of Law degree in this year’s graduation ceremony at the University of the West Indies’ St Augustine campus.

Click on the link above to see full article.

A Call for Public Education

Victims need justice too

Source: Nation Newspaper - Barbados

Published on: 10/30/07.

Kindly allow me space in your column to express my views about abolishing capital punishment in this island.

Yes, indeed everybody wants to see criminals get leniency or acquitted for heinous crimes, such as murder, but not a soul is concerned about the victims or their families or their children.

The said people who would like to see justice done promptly for criminals never once express their poignance for the victims. Some want Government to discontinue hanging in Barbados.

As far as I am concerned, capital punishment no longer exists in the Caribbean, so this load of rot about capital punishment nonsense is just a joke.

Almost every day, some innocent person dies as a result of lawless youngsters who have either no regard for human lives or the law (period). But all you are hearing is people talking glib, as usual, about fair and prompt trials for criminals.

Not a soul, in Bajan parlance, ain't feeling for the victims' families or their children.

The question I am asking is what is the purpose of this Caribbean Court of Justice (CCJ)? What purpose does it serve? I haven't heard of anything being done since we, the Caribbean people, implemented this CCJ system.

– LEONA WELLS

Justice Wit: Start Behaving as Adults

Start behaving as adults

Source: The Daily Herald - Philipsburg, Saint Maarten, Netherlands Antilles

Published: Monday, October 22, 2007

Former judge on the Common Court of Justice of the Netherlands Antilles and Aruba Bob Wit says Curaçao and St. Maarten should use the constitutional change process to take the necessary steps towards more maturity, instead of remaining dependent on the Netherlands.

He made his comments during a lecture at University of the Netherlands Antilles in Curaçao on the occasion of the establishment the Dutch Caribbean Human Rights Committee last Thursday.

Wit, appointed as judge on the Trinidad and Tobago-based Caribbean Court of Justice on June 1, 2005, said that in the negotiations for new constitutional structures, the Dutch, based on all that had gone wrong up to now, had been seeking to institutionalise some form of supervision on Antillean politicians as to their way of managing public finances, to avoid reoccurrence of the financial mess that had emerged.

“Where they seem to go wrong is the way in which they apparently seek to establish that supervision, as they seem bent on taking that responsibility permanently out of our hands,” Wit said in his lecture entitled “Taking ownership of Human Rights towards a maturing Dutch Caribbean.”

He said that, understandably, the approach of the islands had been to resist the measures of supervision as much as possible in an effort to give away as little “autonomy” as possible.

In Wit’s view, both approaches are to be deplored. “Going back to the basics, we have to be mindful that this whole enterprise of constitutional restructuring should be aimed at furthering the right of self-determination for us, the Dutch Caribbean peoples.”

He said that at the same time, the people should be mindful of the fact that “this is not a right per se, but one that implies a duty for us to foster in a meaningful way the high ideals of democratic governance.”

He said focusing only on the external outline of constitutional arrangements such as a separate status similar to that of Aruba, the islands would have achieved little because internally, and thus basically, everything would have remained the same.

Judge Wit continued: “In order to mature in the big bad world of today, one needs to take responsibility for those things that matter. One cannot claim the right to stand on one’s own two feet whilst staying in bed. One has to get up and stand.

“The right to carry responsibility for one’s own affairs, therefore, implies that one starts carrying that responsibility. Even if it were true that ‘mother knows best,’ we cannot accept that ‘mommy’ will take care of us to eternity.

“And so, any arrangement that sees to it that the Netherlands will forever be in charge of our affairs will reduce us to eternal adolescents, pitiful creatures indeed. This would be a violation of our right to human dignity which is, I think, the most fundamental right there is.”

He said that to prevent this impending violation, “we have to start behaving as adults. We have to take our fate in our own hands even though, for the time being at least, we will stay within the confines of our almost imaginary Kingdom which, by the way, is still real enough to produce both limitations and benefits for us.”

Embrace the CCJ

'Embrace the Caribbean Court of Justice'

Source: Barbados Advocate

Sun Oct 21 2007

The batch of 22 new attorneys who were recently admitted to the Bar have been urged by one of their colleagues to lobby their respective policy directors to embrace the Trinidad-based Caribbean Court of Justice (CCJ).

The comments came last Friday from career banker, Hilford Murrell, during his response after the new attorneys were admitted to practise law in Barbados by this country's Chief Justice, Sir David Simmons.

Noting that the complement included Barbadians, Guyanese, Trinidadians and Jamaicans, Murrell said, "I suggest that there is one unfinished business that we are duty-bound to address. This concerns regional acceptance of the CCJ as the final Appellate Court."

He added: "With the bonded friendships that we have cultivated over the years, let us inspire our colleagues and classmates to lobby their respective policy directors and in the words of a statement attributed to your Lordship in the UK press The Guardian Weekly "to entomb the last vestige of colonialism by embracing the CCJ."

The new attorney observed that in so doing, even though economic independence may be dwarfed by globalisation, at least as a region "we are assured that we can still stand tall in the identity of our own Court".

The Caribbean Court of Justice (CCJ) is the regional judicial tribunal established on February 14, 2001 by the agreement establishing the Caribbean Court of Justice. The agreement was signed on that date by the Caribbean Community (CARICOM) states of: Antigua & Barbuda; Barbados; Belize; Grenada; Guyana; Jamaica; St. Kitts & Nevis; St. Lucia; Suriname and Trinidad & Tobago. Two further states, Dominica and St. Vincent & The Grenadines, signed the agreement on February 15, 2003, bringing the total number of signatories to 12. The CCJ was inaugurated on April 16, 2005 in Port of Spain, Trinidad & Tobago. It had a long gestation period, beginning in 1970 when the Jamaican delegation at the Sixth Heads of Government Conference, which convened in Jamaica, proposed the establishment of a Caribbean Court of Appeal in substitution for the Judicial Committee of the Privy Council.

The Caribbean Court of Justice is designed to be more than a court of last resort for member states of the Caribbean Community. For, in addition to replacing the Judicial Committee of the Privy Council, the CCJ is vested with an original jurisdiction in respect of the interpretation and application of the Treaty Establishing the Caribbean Community. In effect, the CCJ is designed to exercise both an appellate and an original jurisdiction.

Relying on CCJ Case ( Jamaican Extradition Case)

Jamaican businessman to be sent to US
published: Wednesday | October 10, 2007
Source : Jamaica Gleaner

Jamaican businessman Trevor Forbes is to be extradited to the United States to face drug -trafficking charges as a result of a United Kingdom Privy Council ruling on Monday.

Forbes, 58, of Wickie Wackie, Bull Bay in St. Andrew, is to be tried for allegedly arranging to import large quantities of marijuana into the United States (U.S.).

The U.S. authorities asked the Jamaican Government to extradite Forbes. He has been in custody since July 2003 when an extradition order was made in the Corporate Area Resident Magistrate's Court.

Forbes' lawyer , Frank Phipps Q.C., argued that the Extradition Act was unconstitutional because it breached Forbes' rights under section 16 of the Constitution, of freedom of movement and immunity from expulsion. He relied on the Privy Council's decision in the Caribbean Court of Justice case to support his argument that the Extradition Act should have been passed as 'special legislation' with a two-thirds majority in both houses of Parliament since it affected his client's fundamental human rights.

Solicitor General Michael Hylton, Q.C., submitted in response, that the Extradition Act did not breach or affect Forbes' constitutional rights, since the Constitution authorised the State to pass laws to allow for the extradition of persons to face trial in other countries for crimes committed abroad. The rights were, therefore, subject to such laws.

He argued that the Extradition Act contained reasonable safeguards for the rights of accused persons.

The panel, comprising Lords Hoffman, Scott, Rodger, Walker and Mance agreed with the Solicitor General's submissions and unanimously dismissed the appeal. They took the unusual step of not reserving judgment but instead delivered judgement immediately after hearing submissions.

The judgment could affect many other Commonwealth countries which have similar constitutional provisions and extradition laws, various interested persons, including representatives of the Commonwealth Secretariat, attended the hearing.

Attorneys Raphael Codlin and George Soutar appeared with Mr. Phipps and Director of Public Prosecutions Kent Pantry, Q.C., and Assistant Attorney General Julie Thompson appeared with Mr. Hylton.

Women Lawyers on Top!

'Women lawyers on top'

Source: Trinidad & Tobago Express

Port-of-Spain,Trinidad and Tobago

Thursday October 4, 2007

IN the past decade and a half, there has been an increased proportion of the numbers of women in the legal profession of Trinidad and Tobago, president of the Caribbean Court of Justice Michael de la Bastide has said.

He pointed out that over the last 15 years, the number of women graduating from law school and those admitted to practise locally had considerably exceeded the number of their male counterparts, from between a ratio of two to one to a ratio of three to one.

De la Bastide made the comments during a lecture on Monday night at the Hall of Justice, Knox Street, Port of Spain, to commemorate the 20th anniversary of the Trinidad and Tobago Law Association.

He recalled that when he returned to this country from England in 1961 there were very few women practising law in this country and that remained the case for some time thereafter.
"But over time the pendulum has swung," he added.

He also noted that in the recent years the "lion's share" of prizes awarded at law school graduation has gone to women. "There is no doubt that the regional as well as the local bar has benefited immeasurably from the infusion of talent into the profession produced by the removal of the gender barrier," he said.

During his speech he regaled the audience with stories of the Law Association and of "colourful" lawyers of the past.

He recalled one lawyer that had withdrawn an appeal but, after a fellow lawyer reviewed the appeal and pointed out that it had some merit, decided to "withdraw his withdrawal".

He also recalled in the old chambers having a large block of ice in an aluminium basin as the only source of refreshment, and a ceiling fan which would blow any unsecured documents all over the court room and have lawyers chasing after them.

De la Bastide expressed his hope that members of the Law Association would continue to cherish and uphold the traditional attitudes of the bar, specifically the emphasis on its independence, camaraderie and fellowship between members, and also its rigid adherence to high professional standards of competence and integrity.

He also urged members to support their judges when it is needed and "to do everything in their power to conserve the unity in the profession as well as on the bench".

In attendance at the lecture were acting Chief Justice Roger Hamel-Smith, retired judges, magistrates and a number of lawyers

Marshall Burnett Case - Jamaica

Privy Council Appeal No. 41 of 2004

Independent Jamaica Council for Human Rights (1998)
Limited and Others Appellants

v.

(1) Hon. Syringa Marshall-Burnett
and
(2) The Attorney General of Jamaica Respondents

FROM

THE COURT OF APPEAL OF JAMAICA
---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 3rd February 2005
------------------

Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell

[Delivered by Lord Bingham of Cornhill]
------------------

CLICK LINK FOR FULL TEXT OF JUDGMENT:

http://www.privy-council.org.uk/files/other/independent%20jamaica.jud.rtf

Marshall Burnett Commentaries: 1

The Privy Council and the CCJ: Understanding the judgement

published: Sunday February 13, 2005

Source: Sunday Gleaner, Kingston, Jamaica

NICHOLSON: "The Board has no difficulty in accepting, and does not doubt, that the CCJ Agreement represents a serious and conscientious endeavour to create a new regional court of high quality and complete independence..."

ON THURSDAY February 4, the London-based Privy Council issued its judgment in the case of The Independent Jamaica Council for Human Rights et al v. The Hon. Syringa Marshall-Burnett and the attorney-general of Jamaica. In this case, the central question was whether the procedure adopted by the government in enacting legislation on the Caribbean Court of Justice (CCJ) met the requirements set out in the Jamaican Constitu-tion. The case is therefore popularly referred to as the CCJ Case.

RULE OF LAW

Naturally, the decision of the Privy Council has already prompted a significant level of public commentary, as befits a healthy, vibrant democracy. In this article, I wish to outline the main issues considered by the Privy Council, and consider aspects of the reasoning of Jamaica's highest court. From the outset, though, I should reiterate that the government believes strongly in the rule of law and constitutional governance, and that, consequently, there can be no doubt that the decision of the Privy Council will be implemented.

In the CCJ Case, the Privy Council considered three acts of Parliament designed to abolish appeals to the Privy Council and to substitute appeals to the Caribbean Court of Justice in place of appeals to the Privy Council. The acts considered by the Privy Council also sought to establish the Caribbean Court of Justice as a court of original jurisdiction to hear cases concerning the interpretation of the treaty establishing the CARICOM Single Market and Economy (the CSME).

In reaching its decision on whether the three acts of Parliament were constitutional, the Privy Council paid considerable attention to the structure of the higher courts in Jamaica, namely, the Supreme Court and the Court of Appeal. The Privy Council emphasized that these higher courts are entrenched within the Constitution, and, in particular, that certain provisions designed to safeguard the independence of judges are protected by entrenchment.

SPECIAL PROCEDURE

Where a provision is entrenched in the Jamaican Constitution, this means that a special procedure needs to be followed for that provision to be changed. So, the Constitution indicates that entrenched provisions can only be changed by a two-thirds majority of the members of both Houses of Parliament, and that certain time constraints need to be respected.

The Privy Council noted that as the final court of appeal for cases from Jamaica, the Caribbean Court of Justice would hear appeals from our Supreme Court and Court of Appeal. Their lordships also observed that the Caribbean Court of Justice, as contemplated under the three acts of Parliament, would not be entrenched in the Jamaican Constitution. They then reasoned as follows:

"The Constitution seeks to protect the independence and security of tenure of judges of the Supreme Court and the Court of Appeal, by entrenching certain provisions about these courts;

"If Parliament creates a court that can overrule decisions of the Supreme Court and the Court of Appeal, and that court is not similarly entrenched, this would be tantamount to amending the entrenched provisions concerning the Supreme Court and the Court of Appeal;

"It therefore followed that any legislation creating such a court would have to be enacted following the procedure which would have had to be followed if those entrenched provisions were being amended;

"Consequently, the three acts were not validly passed because they did not follow the procedure for amending entrenched provisions of the Constitution."

QUALITY

By this line of reasoning, therefore, the Privy Council struck down the three acts of Parliament. In doing so, however, their Lordships noted the nature of the effort that has so far gone into the establishment of the CCJ. Referring to themselves as the Board, they observed:

"The Board has no difficulty in accepting, and does not doubt, that the CCJ Agreement represents a serious and conscientious endea-vour to create a new regional court of high quality and complete independence, enjoying all the advantages which a regional court could hope to enjoy."

They also noted that the acts in question did not, singly or cumulatively, weaken the constitutional protection enjoyed by the higher judiciary in Jamaica. Their concern, however, was that the acts gave rise to the risk that governments could amend the CCJ Agreement, and thereby undermine "the protection given to the people of Jamaica by entrenched provisions of Chapter VII of the Constitution."

One additional aspect of the judgment may be mentioned briefly. The Privy Council has not challenged the view that appeals to the Privy Council may be abolished by a majority of all the members of each House of Parliament. As the Privy Council notes, Section 110 of the Constitution, which addresses the place of the Privy Council in our judicial system, is not entrenched. In the view of the Privy Council, therefore, the repeal of Section 110, without more, would not weaken the protection to be given to the people of Jamaica.

The Most Honourable Prime Minister has indicated that the Jamaican government will be consulting with its CARICOM partners as to the way forward, particularly in regard to arrangements for the Single Market and Economy.

It is reported that the Opposition JLP wishes to meet with the govern-ment for consultations on this matter; the government would like this to happen so that we can formulate appropriate solutions for the future of the justice system in Jamaica.

A.J. Nicholson Q.C. - (former) Attorney General and Minister of Justice- Jamaica

Marshall Burnett Commentaries: 2

Unity needed on key issues

Source: Jamaica Gleaner

published: Wednesday February 1, 2006

Anthony Gifford, Contributor

ONE YEAR has passed since the historic decision in the case of Independent Jamaica Council for Human Rights vs Syringa Marshall-Burnett. The Privy Council struck down the Bills which the Government had promoted in order to secure Jamaica's participation in the Caribbean Court of Justice (CCJ). The judges ruled that for Jamaica to install a new final appellate court, the court should be entrenched in the Constitution in the same way as the existing courts are entrenched. Entrenching the CCJ would ensure that a future government which disliked its decisions could not withdraw from it without opposition agreement.

BI-PARTISAN AGREEMENT

Since then there has been no move towards the bi-partisan agreement which is needed. Both sides agree in principle that Jamaica should join the CCJ, but cooperation seems to be an alien concept to our political leaders. It is the same with the Charter of Fundamental Rights, on which both sides agreed many years ago. It is the same with the declaration of Jamaica as a Republic in place of having the Queen as head of state.

All these issues have a common theme: the assertion of Jamaica's sovereignty and independence. The retention of the Queen as head of state may be merely symbolic, but what it symbolises is a colonial link which should be utterly rejected. The existing chapter in the Constitution on fundamental rights is written in legalistic language derived from Europe. Its provisions are inadequate and it has serious flaws. A Jamaican Constitutional Commission took soundings from the public and presented an agreed draft 10 years ago. It has lain on the shelf because the political leaders could not find common ground. So Jamaicans are left without the benefit of a home-grown, comprehensive and readable Charter of Rights.

SHARED RELUCTANCE
The same paralysis prevents any movement on the CCJ, which is now up and running without us. There is a reluctance, shared by many attorneys, to commit ourselves to a Caribbean court while our local justice system is under so much pressure. Many argue that at least Jamaica enjoys a first-class final appeal court, even if it is provided by courtesy of the former colonial ruler. Like Hamlet we stand on the brink, preferring to 'bear those ills we have than fly to others that we know not of.'

Those who shrink from change point to the excellence of the Privy Council. I have pleaded several cases there in the last few years and I can confirm that the judges are erudite, well prepared and keen to promote fundamental human rights. If you can afford to get there (and the costs are huge), the Privy Council will give you a fair hearing.

LEARNED DECISIONS

That does not mean that impartial and learned decisions can only be made by British judges. We are in danger of assuming a mindset of subservience, forgetting that the Caribbean has also produced great jurists. The region has shown excellence in academic, medical and other professional areas. I believe that it can fashion an appellate court which will show equal excellence in the delivery of justice. The court will also be far more accessible to our people and our attorneys.

The new leaders now emerging in both parties have a duty to put national interests first; to stop playing politics with constitutional change; and to realise that the basic consensus which exists on these issues needs to be translated into a platform of agreed reforms.

Anthony Gifford is an attorney-at-law in Jamaica

Marshall Burnett Commentaries: 3

Separation of powers and the CCJ

By: Dr Hamid Ghany

Source : Trinidad Guardian

February 20, 2005

The recent judgment by the Privy Council in the matter of the Independent Jamaica Council for Human Rights (1998) Ltd vs the Hon Syringa Marshall-Burnett and the Attorney General of Jamaica (Privy Council Appeal No 41 of 2004) that was handed down on February 3, instant has opened a major debate about the protection of the Separation of Powers in all of the member states who will share the jurisdiction of the Caribbean Court of Justice (CCJ).

According to the Privy Council:
“The three Acts do not, singly or cumulatively, weaken the constitutional protection enjoyed by the higher judiciary of Jamaica.

The question is whether, consistently with the constitutional regime just described, a power to review the decisions of the higher courts of Jamaica may properly be entrusted, without adopting the procedure mandated by the Constitution for the amendment of entrenched provisions, to a new court which, whatever its other merits, does not enjoy the protection accorded by the Constitution to the higher judiciary of Jamaica.

In answering this question, the test is not whether the protection provided by the CCJ Agreement is stronger or weaker than that which existed before, but whether, in substance, it is different, for if it is different, the effect of the legislation is to alter, within the all-embracing definition in section 49(9)(b), the regime established by Chapter VII.

The Board has no difficulty in accepting, and does not doubt, that the CCJ Agreement represents a serious and conscientious endeavour to create a new regional court of high quality and complete independence, enjoying all the advantages which a regional court could hope to enjoy.

But Dr Barnett is correct to point out that the Agreement may be amended, and such amendment ratified, by the governments of the contracting states, and such amendment could take effect in the domestic law of Jamaica by affirmative resolution. The risk that the governments of the contracting states might amend the CCJ Agreement so as to weaken its independence is, it may be hoped, fanciful. But an important function of a constitution is to give protection against governmental misbehaviour, and the three Acts give rise to a risk which did not exist in the same way before.

The Board is driven to conclude that the three Acts, taken together, do have the effect of undermining the protection given to the people of Jamaica by entrenched provisions of Chapter VII of the Constitution. From this, it follows that the procedure appropriate for amendment of an entrenched provision should have been followed.” (para 21).

The Privy Council has concluded that the mechanism of amendment of the provisions of the CCJ Treaty are such that the domestic law of Jamaica would have been adversely affected if the legislation giving effect to the provisions of the Treaty in respect of the Judiciary had been implemented.

The Separation of Powers is one of the sacred components of every Constitution in the Commonwealth Caribbean and the means by which it is implemented in each Constitution has to be gleaned from the Constitution itself.

The danger in Jamaica (and by extension in those other Commonwealth Caribbean countries that share relatively similar constitutional provisions as Jamaica) is that the Executive and the Legislature will gain the upper hand over the Judiciary when compared to the existing constitutional provisions.

As it stands now, judges are protected from easy removal by the fact that the Judicial Committee of the Privy Council enjoys the right to make the final determination in respect of the removal of a Chief Justice or a Judge.

Prime Minister Manning clearly established that point in his address to the Senate last Tuesday, in respect of the current controversy in this country involving the Chief Justice and the Executive. He clearly had to cite the fact that the Privy Council would have the final say in order to assuage the population. Would the population be equally as assuaged if the CCJ was the final arbiters in the matter?

The reality is that this controversy in Trinidad and Tobago when coupled with the recent Privy Council judgment serve to weaken the case for the CCJ primarily because there is no political consensus in the region at the level of the wider population, or across the political aisles in each of the countries, for us to have a CCJ.

The political management of how the CCJ is to be introduced has been grossly mishandled and this Privy Council judgment has blindsided Caricom. Within two weeks of that judgment, the controversy in Trinidad and Tobago has provided food for thought about the ramifications of weakening the Separation of Powers in relation to the Judiciary.

After all, it would only take an affirmative resolution by the Jamaican Parliament to confirm the alteration of the Treaty to weaken the Separation of Powers. The proposal for change would come from the Heads of Government and the national Parliament would be dominated by a Government majority so that affirmative resolution is guaranteed (without a special majority). There would be no need for a time delay of six months, a special majority in both Houses of Parliament and a referendum to effect the changes as is the case now in Jamaica.

Caricom has also to understand that three member countries have suffered political instability over the years to the extent that the constitutional government was overthrown, namely Haiti, Suriname and Grenada.

Trinidad and Tobago almost joined that category in 1990, while Guyana had a long history of political abuse during the Burnham years and Caricom did nothing.

The environment in which the CCJ is expected to operate must be politically stable, otherwise the Treaty will be meaningless if there is a period of prolonged bickering about recognising a government, such as is happening now with Haiti in Caricom.

Are we prepared to surrender our court system and its existing protection so easily in the name of completing our cycle of independence?

Or, would we prefer to satisfy ourselves that there is widespread consensus for the change and an equal level of protection for our Judiciary before we give away what we have?

'The CCJ and the Legal Profession'

Firmly stands the CCJ Analysis
by Rickey Singh

Sunday, September 30, 2007

Source: Jamaica Observer

A West Indian jurist of the Caribbean Court of Justice (CCJ) has made a strong plea for the region's legal fraternity to help in maintaining "the integrity" of the Port-of-Spain- based institution.

For Vincentian-born Adrian Saunders, former acting chief justice of the Eastern Caribbean Supreme Court, the CCJ "must be able, at all times, to command support and receive encouragement from the legal profession".In delivering the feature address at a conference of the Bar Association of the Organisation of Eastern Caribbean States (OECS) in Grenada last weekend, Justice Saunders argued that the region's legal profession was, after all, "the natural constituency" of the CCJ.

Speaking on the topic, 'The Caribbean Court of Justice and the Legal Profession', the former chairman of the Judicial Education Institute of the Eastern Caribbean Supreme Court recalled that the region's legal fraternity was foremost in its principled advocacy of Caricom substituting the Judicial Committee of the Privy Council with a Caribbean Court of Appeal.

In his assessment, from that early period of commendable support by the legal profession for such a regional appeal court to the inauguration in April 2005 of the CCJ, greater has become the necessity for the legal fraternity to demonstrate such encouragement for the court.

The CCJ, with its panel of seven eminent jurists from the Caribbean, United Kingdom and The Netherlands, stands unique in having original jurisdiction for settlement of disputes arising from the Caricom Treaty on trade and investment matters, while serving as a final appellate court for civil and criminal cases.The court's ceremonial inauguration that had coincided with the initial impeachment proceeding against Trinidad and Tobago's Chief Justice Satnarine Sharma by Prime Minister Patrick Manning, underscored a battle won with the support received from the region's legal fraternity against any political involvement in the appointment or removal of its judges.

No 'Hangman's court'

Saunders dismissed as false and without any merit, attempts by some critics to caricature the CCJ as a so-called "hangman's court" in defence of their own anxieties to retain access to the Privy Council.

Speaking also with some 19 years of experience in private practice as an attorney, Saunders told the participants at the OECS Bar Association meeting that it was important for the CCJ and development of Caribbean jurisprudence for there to be the widest possible access to the regional court as a final appellate institution, instead of a continuing dependence on the Privy Council.

Currently, only Barbados and Guyana have the CCJ as their final appellate court. The Bahamas, Suriname and Haiti have, for different reasons, shown no interest in the CCJ.The Eastern Caribbean states have been rationalising their seeming lack of enthusiasm to delink from the Privy Council by pointing to constitutional hurdles to be overcome, but none has so far initiated any move for the CCJ to replace the Privy Council.

The new Jamaica Labour Party administration has pledged to let the people of Jamaica decide on this issue by way of a national referendum. The Opposition People's National Party has always been in favour of the CCJ but ran into problem of implementation by a Privy Council judgment.

In Trinidad and Tobago, both the People's National Movement and the United National Congress have been doing the 'twist' by their on-and-off approaches to membership of the CCJ. Latest signal from Prime Minister Manning is that access of the CCJ would be a priority issue once his party is returned to power following the new general elections.

Our jurisprudence

In his articulation on Caribbean jurisprudence, Justice Saunders noted that its promotion was "not just about civil and criminal matters, there is also the original jurisdiction of the CCJ to consider." There is no Privy Council or other international precedents here to adopt, discard or massage. Our CSME (Caricom Single Market and Economy) jurisprudence starts with a blank slate. "There is, of course, a considerable body of case law of the ECJ (European Court of Justice). The reality is that the ECJ, in many ways, made the European Community what it is today..."

He reminded his audience that the "broad platform" on which Caribbean jurisprudence rests "is the common, historic, political, economic and cultural experiences we enjoy in this region; our mutual history of slavery, indenture, displacement, resistance and struggle..."

"Colonialism", he said, "has bequeathed us a legacy of democratic structures and traditions premised on those that exist in the United Kingdom. With few exceptions, we boast the same limitations of the Westminster parliamentary system, a comparable body of pre-independence law and written constitutions modelled along the same lines..."

It was on "the solid edifice" of a shared body of law and judicial decision-making, said Saunders, that Caribbean jurisprudence was being strengthened with the CCJ."It is an authentic jurisprudence," he said, "that exists and that has contributed and continues to contribute to an enrichment of the common law."

Saunders, therefore, could not think of a more fitting description than to label this jurisprudence as "Caribbean" and to declare that "there is no better-suited entity to promote it than a Caribbean Court of Justice - with the support of the region's legal fraternity."

President's Statement to Impeachment Tribunal

De la Bastide denies 'big case' discussions
Wednesday, September 26th 2007

Source: Trinidad Express

http://www.trinidadexpress.com/index.pl/article_news?id=161208033

PRESIDENT of the Caribbean Court of Justice Michael de la Bastide yesterday stated that it would be "improper" for a Chief Justice to discuss a pending case with a magistrate.

His statement came in response to the testimony of Chief Justice Satnarine Sharma before an impeachment tribunal.

Sharma stated on Friday that Chief Magistrate Sherman McNicolls had told him that it was the practice for him to report the outcome of "big cases" with his predecessor, de la Bastide, one which he followed when Sharma assumed office in July 2002.

De la Bastide in a statement to the tribunal said that "was never a practice while I was Chief Justice (between May 1995 and July 2002) for the Chief Magistrate to report to me after every 'big case' which he tried, nor indeed after any case tried by him".

"There was no occasion on which I discussed with Mr McNicolls a case which he was trying before he had given his decision. I would have considered that to have been improper. Further, I do not recall any occasion on which I discussed with him, after the decision was given, a case which he had tried," his statement said.

Chairman of the tribunal Lord Michael Mustill said he did not think the statement was going to influence their decision in any way. He noted earlier that such meeting were not unfamiliar in other jurisdictions.

The tribunal met in closed-door session at the start of yesterday's proceeding to discuss the use of a report compiled by High Court Judge Humphrey Stollmeyer.

Stollmeyer was appointed by the Judicial and Legal Service Commission to investigate a complaint made by Sharma against McNicolls. Sharma claimed that McNicolls made a false allegation against him accusing him of trying to influence the outcome of the Basdeo Panday trial after he was implicated in a dodgy land deal.

The Commission had met in emergency session on Thursday to decide whether it will disclose the Stollmeyer report and provided a copy late Friday with condition that its contents remain private. A second report, prepared by Justice Sebastian Ventour, which investigated McNicolls' decision for refusing to testify against Sharma in a criminal case, was deemed by the Commission to be irrelevant to the tribunal's task.

Mustill said that it was not necessary or useful to explore Stollmeyer's report. He also ruled against an application made by McNicolls' attorney to make any reference to a separate complaint against Sharma regarding the Naraynsingh case.

Refereredum for Jamaica

PM promises referendum on CCJ

Source: radiojamaica.com - Jamaica

Prime Minister Bruce Golding Saturday gave the clearest indication yet that Jamaicans will vote on whether the Caribbean Court of Justice (CCJ) should be the country's final appellate body.

Speaking in Trinidad where is he attended a Caricom Heads of Government meeting on Health, Mr. Golding reiterated his intention to hold a referendum on the CCJ.He says the referendum will be held as soon as the reform of the Jamaican Constitution is completed.

While it was in Opposition, the Jamaica Labour Party maintained its stance on the issue of the Caribbean Court of Justice replacing the London based Privy Council.It has insisted that a referendum be held to decide whether Jamaicans want to change their final appellate court.

RJLSC Appointment

JS Archibald QC reappointed to Regional Judicial and Legal ...
Source: BVI News Online, Road Town,Tortola,British Virgin Islands

Dr. Joseph S. Archibald QC of the British Virgin Islands has been re-appointed as a member of the Caricom Regional Judicial and Legal Services Commission (RJLSC) for a term of three years with effect from 20 August 2007 under Article V.5 of the Caricom Agreement Establishing the Caribbean Court of Justice (CCJ) as a Final Court in the Caricom Region.

The letter of re-appointment dated 5 September 2007 was signed by the President of the CCJ who is Chairman of the RJLSC. Dr Archibald has written his acceptance of the re-appointment. The RJLSC consists of a Chairman and ten Members including two former Chief Justices of the OECS and Guyana.The duties of the RJLSC include:

• making recommendation to the Heads of Caricom Countries for the appointment of the President of the CCJ;

• appointing Judges of the CCJ, other than the President of the CCJ, having regard to certain established criteria;

• making appointments of officials and employees of the CCJ, and determining their salaries, allowances and other terms and conditions of service;

• exercising disciplinary control over Judges of the CCJ, other than the President of the CCJ, and over officials and employees of the CCJ.

The RJLSC has been granted power to regulate its own procedure, and its proceedings shall not be enquired into in any Court.In the exercise of their functions, Members of the RJLSC shall neither seek nor receive instructions from any body or person external to the RJLSC.Members of the RJLSC have been granted certain immunities and privileges, like Judges of Supreme Courts, throughout the Caricom Region.

General Election Underscores Jamaica’s Pivotal Caribbean Role

General Election Underscores Jamaica’s Pivotal Caribbean Role

By Sir Ronald Sanders

Special to Huntington News Network

The pivotal place of Jamaica in Caribbean relations and in the region’s relations with the international community was underscored by the September 3rd general elections which saw the Jamaica Labour Party (JLP) unseat the incumbent Peoples National Party (PNP) for the first time in 18 years.

The JLP is associated with a lukewarm attitude to Caribbean integration even though the country’s manufacturing industry and, increasingly, its big financial services providers have been beneficiaries of the Caribbean Community and Common Market (CARICOM).

The Party’s previous leader, Edward Seaga, was a huge critic of the economic integration of the 15 countries that form CARICOM, and while he was Prime Minister did little to advance the integration process.

At the end of last year, Mr Seaga wrote: “CARICOM is likely to face a slide, not a climb, in the future. One day we will look back at the days, months and years of effort that has gone into this futile ordeal to say nothing of the setback for the future, and regret the waste which could have been avoided if the lessons of the past had been taken to heart”.

Part of the past to which Mr Seaga referred is the objection of the JLP under Sir Alexander Bustamante to Jamaica’s participation in the West Indies Federation between 1958 and 1962. The JLP successfully campaigned against the Federation in a 1961 Referendum and Jamaica withdrew opening the way for the Federation’s demise.

The JLP, therefore, has a reputation of being ideologically hostile to deepening the Caribbean integration process, and it is understandable that other Caribbean governments and the international community as a whole would be anxious about the policies that the JLP and its leader Mr Bruce Golding will adopt toward the region.

A good clue to how a Jamaica government under Mr Golding will treat CARICOM is contained in the JLP’s manifesto for the general election. Although the party’s position is set out in two brief paragraphs in a lengthy document, it is, at least, positive.

The paragraphs state: “We pledge our support for CARICOM and the concept of regional integration. We will use our membership and influence within CARICOM and the CSME to exploit their real potential, i.e., to combine our energies and resources as individual states to secure investments, create jobs, increase exports to third countries and improve living standards within the region”.

There was no word about the region’s efforts to establish a CARICOM Commission or a similar mechanism to improve the governance of the regional integration process including the Single Market and Economy (SME) and nothing about whether the JLP will clear the way for Jamaica to replace the British Privy Council with the Caribbean Court of Justice (CCJ) as its highest court of appeal.

It is more than likely that the government will not support a CARICOM Commission and it is difficult to see how it can support the CCJ as the highest appellate court.

But, on trade matters the JLP does see value in the Caribbean Regional Negotiating Machinery (CRNM). Its manifesto states clearly that, as the government, the JLP will “support the CRNM and the initiatives being pursued through CARIFORUM to conclude the most favourable agreements with the European Union (Economic Partnership Agreements) and the World Trade Organisation (WTO) Doha round.

These positions on CARICOM may very well suit other Caribbean governments which have never wanted to cede, or pool, any aspect of their sovereignty to a supra-national regional body. Those governments can now sit by while the new Jamaica government takes the blame for not deepening regional integration.

Since a quasi-Cabinet of CARICOM heads of government was initiated over a decade ago, the Jamaican Prime Minister has carried the portfolio for External Economic Negotiations. This task was performed impressively by PJ Patterson as Prime Minister and Leader of the PNP. When the ball was thrown to Mrs Portia Simpson-Miller on her election as the leader of the JLP, it was fumbled and eventually dropped.

The job will now pass to Mr Golding who is fully up to the task and who will undoubtedly give the Committee on External Relations the leadership it requires particularly as the Caribbean heads into the final stages of negotiations with the European Union (EU) over Economic Partnership Agreements (EPAs).

In its manifesto for the general election, the new government gave a clear indication of the strong position that it intends to adopt on these issues. It says it will: press the EU and the US to remove their agricultural subsidies as a precondition for further liberalization of the Caribbean’s market for such products; strenuously advocate that the EU defer beyond January 2008 reciprocal market access; identify sensitive goods and services which can still be protected from market access under existing WTO rules; and insist on the establishment of a development agenda as the centrepiece of the revival of the WTO trade negotiations.

All of this is right, and if Mr Golding holds to these positions and Jamaica is backed solidly by other Caribbean governments, the negotiations with the EU might turn to a more advantageous track than the one on which they are now travelling.

So, while the Caribbean integration process will almost certainly slow down under the new JLP government, Jamaica will remain a strong partner on trade within CARICOM from which it benefits, and it will be positive leader in international trade negotiations for which its Prime Minister will have regional responsibility.

Nonetheless, the Caribbean region will be looking to Mr Golding for an early signal that he is bold enough to walk a more ambitious path toward regional cooperation than his predecessors were willing to do as leaders of the JLP and Prime Ministers of Jamaica. Giving such a signal would only strengthen the pivotal place of Jamaica in the Caribbean.

* * * Sir Ronald Sanders is a business executive and former Caribbean Ambassador to the World Trade Organization who publishes widely on Small States in the global community. Responses to: ronaldsanders29@hotmail.com

EC Grants Financial Support to CCJ

Financing Agreement Signed to Support Caribbean Court of Justice ...

Source: Caribbean Press Releases.com (press release)

- Christ Church,Barbados

Secretary-General of the Caribbean Community (CARICOM) and CARIFORUM, H.E. Edwin Carrington on Friday 17 August signed a 1.3M Euro Financing Agreement to support the operations of the Caribbean Court of Justice (CCJ). The signing ceremony took place at the CCJ Training and Conference Room, Port of Spain, Trinidad and Tobago.

The Agreement, signed earlier by the European Commission (EC), became effective with the Secretary-General’s signature. A Grant Agreement will be signed later to release the resources under conditions to be agreed by the CCJ and the EC. The execution period of the Agreement falls between 17 August 2007 and December 2012.

The CCJ, the Regional judicial tribunal, was inaugurated on 16 April 2005 in Port of Spain, Trinidad and Tobago. Based in Trinidad and Tobago, the CCJ is nevertheless an itinerant Court which could sit as necessary in any of the subscribing States. Twelve Member States have signed the Agreement establishing the Court.

President of the CCJ, Justice Michael de la Bastide said the money would be used to support a law library, building capacity for information and communication technology, public awareness; and transfer of European Court of Justice experience. “The European Court of Justice is much more matured than the CCJ and we can learn a lot from them and their experience,” Justice de la Bastide said. He expressed his gratitude to the EC, and said the “money was welcome and will be well spent.”

Addressing the gathering that included diplomats, judges of the CCJ, and the media prior to signing the Agreement, Secretary General Carrington stressed the importance and relevance of the CCJ to the operation of the CSME.

“Without the CCJ, the CSME would not be effective in the role that is envisaged for it. It would be remiss of me if I fail to acknowledge the important role the European Union plays, as the largest and most important donor in terms of regional programmes to the Caribbean. I am indeed deeply grateful to the EU for this expression of confidence in the CCJ and the Region as a whole,” the Secretary General said.

The EC also supports other Regional components under CARICOM such as the proposed Caribbean Regional Institute of Translation and Interpretation (CRITI) in Suriname and the Caribbean Regional Negotiating Machinery (CRNM).

This package further complements ongoing support for Caribbean Regional integration through programmes such as the support to the Caribbean Knowledge and Learning Network, to the Caribbean Rum and Rice Industries, to sustainable tourism and other institutional programmes, the Regional Radar Weather Warning System and capacity building in support of preparation of Economic Partnership Agreements.

The total funds for EC support under the Caribbean Integration Support Programme amount to 40.5M Euros.

PNP Promises to put CCJ to Referendum

Now PNP says it will put CCJ to referendum
Source: Jamaica Observer
August 10, 2007

The People's National Party (PNP) has made an about-turn in its position on the Caribbean Court of Justice (CCJ), promising to put the issue to a plebiscite within the next five years as part of other proposed changes to the Constitution.The commitment is outlined in the ruling party's manifesto which it launched last night at The Courtleigh Auditorium in New Kingston.

"Before taking effect, we will ensure that these constitutional changes are submitted to the Jamaican electorate for their approval," the manifesto stated of the CCJ, an updated Charter of Rights reflecting the current thinking on human rights and the creation of a republic headed by a Jamaican.

Party leader and prime minister, Portia Simpson Miller, who arrived late as a result of heavy rains and the visit of Brazilian President Luis Inacio Lula da Silva, did not expand much on the issues in the manifesto, as she was constrained by time. However, the manifesto gives clear indication that referenda will be held on these issues if the party is elected to form the next government on August 27 when Jamaicans will vote in general elections.

The PNP Government, under former Prime Minister P J Patterson, had stoutly resisted calls by the Opposition Jamaica Labour Party (JLP) and rights groups for the CCJ to be put to a referendum.

Jamaica hopes to abandon appeals to the United Kingdom-based Privy Council and replace it with the CCJ as the island's final appeal court.

The controversial court was inaugurated on April 16, 2005 in Port of Spain, Trinidad. However, only Barbados, Guyana and Trinidad & Tobago have entered the CCJ in its criminal and civil appeal jurisdictions.

The court, therefore, serves the other countries in the Caribbean Community in matters relating to regional trade.

The court's critics have raised objections ranging from the quality of jurisprudence in the Caribbean, to the inadequacies of the justice system in the region, to fear that the court will be underfunded and the possibility of political interference. There were also concerns that the CCJ was being introduced to ensure the application of the death penalty.

The Jamaican Government's reluctance to put the issue to a referendum was challenged by local rights groups who took their case to the Privy Council and won a judgement in their favour in February 2005.

Ostensibly, the British law lords ruled that while their court can be struck down by a simple majority in Parliament, it would require special constitutional provisions to entrench the CCJ before it could come into force with superior authority to the Jamaican appeal court.

The ruling left the Jamaican Government with the option of putting the issue to the public or getting the support of a two-thirds majority in both houses of Parliament.

Last year March, Patterson, in his final appeal to political leaders before leaving Gordon House, suggested that they seek bipartisan consensus on at least two of three issues of full sovereignty.

The three issues, which he said would "substantially advance the process of claiming our full sovereignty as a result of critical constitutional reform and provisions", were:
. the entrenchment in the Constitution, in short order, of the Charter of Fundamental Rights;
. completion of the process of "decolonisation", by creating a Republican system of government, with a president as the head of state, with authority derived directly from the people of Jamaica; and
. completing the process of the CCJ becoming the country's final appellate court.

Last night, Patterson's successor, Simpson Miller, also gave firm commitment to the transformation of the justice system by implementing the recommendations of a Government-commissioned reform task force.

Under that programme, a Law Foundation of Jamaica will be set up to assist with "funding innovative justice-related services." in collaboration with the private sector.

The PNP manifesto has also given the party's commitment to the reorganisation of the Office of the Director of Public Prosecution to provide a "single prosecution service for all courts", along with the establishment of a Judicial Code of Conduct.

The party also proposed a programme of human resources and training in the justice system to:
. Establish an independent Court Services Agency, answerable to Parliament and under the direction of the chief justice to help ensure independence of the judiciary from any influence or interference from the executive;
. Establish a Court Services Unit within the Ministry of Justice with responsibility for the implementation of modern systems and structures for our courts;
. Regionalise the Supreme Court; and
. Review operations of specialised courts, and introduce new courts to deal with mental health and domestic violence