Kamla wants to opt out of Carib court

Carib Wise Men urge Kamla to go easy on CCJ

By Bert Wilkinson

Published: Monday, August 30, 2010

Source: Caribbean Life News

In recent days, Kamla Persad-Bissesar, Trinidad and Tobago’s new head of government has given strong signals that that her People’s Partnership administration is unhappy with the high costs of hosting and maintaining the five-year-old Caribbean Court of Justice (CCJ) and may take the issue of the country becoming a CCJ member to referendum.

The prime minister’s announcement, as she reviews decisions made by the past Patrick Manning administration, has sent political shock waves across the region, forcing some of its most prominent citizens or so-called “Wise Men” to urge authorities there not to take “retrogressive steps.”

They interpret her signals as retrogression because they fear a referendum could threaten the very existence of a court that was designed to replace British Privy Council as the region’s final court of appeal, a dream of several independence Caribbean leaders like Burnham, Williams and Manley.

As it stands now, only Guyana, Barbados and most recently Belize, subscribe to the CCJ as their final court of arbitration.

Its ironical that host, Trinidad,is not counted among them, nor is Jamaica and the smaller Eastern Caribbean sub-grouping. These either claim the need for referenda or the requirement of a two-thirds parliamentary vote to abandon the British, or both.

Persad-Bissesar’s recent remarks have also induced Opposition Leader Keith Rowley to come to the defense of the court and to defend the previous decision to lobby for Port of Spain as its headquarters.

“For the PNM, this is an issue of principle, not opportunism,” he said, pointing to the need for the region to complete its independence rather than having jurists far away in England determining the fate of regional citizens.

Ironically as well, the court was established while the prime minister’s predecessor and party leader, Basdeo Panday, was at the helm of government, but it seems as though the future of the court is being rendered as uncertain by the approach of the new administration.

The result as the Barbados Nation reported at the weekend, is that prominent Caribbean citizens: Sir George Alleyne, former head of the Pan American Health Organization, Sir Shridath Ramphal, former three-term Commonwealth secretary general and ex-Guyana foreign minister, retired Jamaican Prime Minister P.J. Patterson, past CARICOMSecretary General Sir Alister McIntyre and Dominica’s President Nicholas Liverpool,have all banded together to issue a statement urging Trinidad to think again.

“We wish particularly to correct the inference that Trinidad and Tobago is carrying a disproportionate cost of the CCJ,” the regional “Wise Men” said in a joint release,noting that a regional trust fund was set up by leaders and framers to finance operations of the court, including judges’ salaries.

Trade-bloc member states are responsible for fundingspecific portions of the court’s costs, based on agreed criteria that includes GDP and population size.

Trinidad and Tobago is responsible for US$36.1M, Jamaica for US$28.7M, Barbados for US$13.5 M and Guyana for US$8.8M. The smaller Eastern islands and Belize are asked to come up with US$2.2M each.

The group also called for calm, saying that “any attempt to create a climate of hostility to the court by distortions in the country of the court’s location is serious in itself. When it is accompanied by suggestions of creating a national court of appeal in place of the CCJ, the implications for the people of the Caribbean, including Trinidad and Tobago, become stark and troubling,” they said as debate in Trinidad builds.

Rowley renews call to PP Govt:

Replace Privy Council with CCJ

Published: 28 Aug 2010

Source: Trinidad Guardian

Opposition Leader Dr Keith Rowley is renewing a call for the People’s Partnership (PP) Government to support the removal of the Privy Council as this country’s final court of appeal. He said T&T should honour its original promise to have the Caribbean Court of Justice (CCJ) as its final court of appeal. The CCJ is headquartered in Port-of-Spain. Rowley made the call in his message to mark the observance of this country’s 48 anniversary of independence on Tuesday.

The CCJ was established to replace the Privy Council as the Caribbean’s final appellate court. Under then Prime Minister Basdeo Panday, T&T had committed to accepting the CCJ as its final court of appeal but when his government lost power, there was a change of heart. Rowley said independence must mean more than giving national political independence. He said independence should also mean that nationals must be responsible for interpreting the laws of the land and arbitrating on issues impartially. “Independence must also mean giving full responsibility for this to nationals,” he added.

He said T&T had reneged on a promise to have the CCJ replace the Privy Council as the nation’s final court of appeal. Prime Minister Kamla Persad-Bissessar said recently that the people of T&T must decide via a referendum whether the CCJ would replace the Privy Council. Rowley said the politicians were “not more committed to the development of T&T than our jurists. To so imply is to cast an unwarranted slur on them.” He said accepting the CCJ as the country’s final court of appeal was long overdue. “For the PNM, this is an issue of principle, not opportunism,” he added. The CCJ was inaugurated in 2005 and also has an original jurisdiction. Guyana, Belize, Barbados and St Lucia have replace the Privy Council with the CCJ as their final court of appeal.

Dr. Archibald Re-Appointed to Caricom Regional Judicial & Legal Services Commission

Source: Virgin Island, Platinum News

Published August 24, 20010

Dr Joseph S. Archibald QC of St Kitts Nevis and the British Virgin Islands has been re-appointed for a second three-year term from 20 August 2010 as a Member of the Caricom Regional Judicial and Legal Services Commission ( "the Commission") according to a letter dated 13 August 2010 from The Right Honourable Mr Justice de la Bastide TC, QC, the Chief Justice of the Caribbean Court of Justice in his capacity as Chairman of the Commission, pursuant to the provisions of the Caricom Agreement Establishing the Caribbean Court of Justice and the Commission.

The Commission appoints the Judges, and recommends the appointment of the Chief Justice, of the Caribbean Court of Justice. Members of the Commission, when travelling in the Caricom Region on Commission business, are granted privileges and immunities similar to those granted to Supreme Court Judges.

Dr Archibald was jointly nominated by the Organisation of Commonwealth Caribbean Bar Associations and the Organisation of Eastern Caribbean States Bar Association as required by the said Caricom Agreement.

Dr Archibald is an International Lawyer who was Called to the Bar as a Barrister of Lincoln´s Inn in England fifty years ago in 1960 with a special Certificate in International Law; was appointed a Queen´s Counsel of the British Commonwealth thirty years ago in 1980; is a Member of the London Court of International Arbitrators; and is one of the three Patron Members of the Washington-based World Jurist Association.

Press Release - August 4, 2010

SECRETARY-GENERAL CARRINGTON STEPS DOWN AT YEAR END

His Excellency Edwin Carrington, Secretary-General of the Caribbean Community (CARICOM) has notified the Heads of Government of the Caribbean Community of his decision to step down from his position, effective 31 December 2010.

Mr. Carrington, a national of Trinidad and Tobago was appointed in 1992 - the sixth Secretary-General of the Community. He succeeded Mr. Roderick Rainford of Jamaica.

“It has been my privilege and honour to have been given the opportunity to serve the Region and its people in this capacity” said Mr. Carrington.

“These last 18 years as Secretary-General have been the pinnacle of my public service career. I have, despite the odds, done all I could to help create a viable and secure Community for All. It has been a period of important achievements as well as significant disappointments. I leave satisfied and confident however, that the Caribbean Community now has a solid platform on which to continue to build the integration movement,” the Secretary-General said

“I am looking forward to the opportunity to deal with some pressing family issues and to enjoy much more time with them. I pay them the highest tribute for their patience, understanding and tremendous support during this long and arduous journey”, Mr. Carrington added.

During his tenure, Mr. Carrington oversaw the revision of the Treaty of Chaguaramas and the consequent transition of the Community from a Common Market to a Single Market in 2006. Under his Secretary-Generalship, the platform is also being set for eventual evolution of the Community to include a Single Economy - the framework for which Heads of Government have undertaken to create by 2015. Mr. Carrington’s term has also seen the establishment of a number of key institutions designed to put the integration process on a sound base, including the CCJ - Caribbean Court of Justice (2005); as well as CROSQ - the Caribbean Regional Organisation for Standards and Quality (2002); the CCCCC - Caribbean Community Climate Change Centre (2005); the CCC - CARICOM Competition Commission (2008); and the CDF – CARICOM Development Fund (2008).

Mr. Carrington, an economist by profession, first joined the then Commonwealth Caribbean Secretariat in 1970 as Chief of Economics and Statistics, rising to Director of Trade and Integration before being appointed as Deputy Secretary-General of the African, Caribbean and Pacific (ACP) Group of States in 1976. He was subsequently elected Secretary-General of the ACP in 1985, the only Caribbean national, to date, to have held that position. In acknowledgement of his outstanding service to the ACP, Carrington Hall at the ACP Secretariat (Brussels) is named in his honour.

On returning from Brussels in 1991, Mr. Carrington served as his country’s High Commissioner to Guyana before his appointment to his current position. Carrington is the longest serving Secretary-General of the Community in the service of which he has been the recipient of national awards from Barbados, Belize, Guyana, Jamaica and Trinidad and Tobago as well as from the Dominican Republic, Italy and Spain.

As Secretary-General of CARICOM, Mr. Carrington also served as Secretary-General of CARIFORUM (comprising all the Member States of CARICOM except Montserrat and comprising the Dominican Republic).

EVERYDAY LAW – Prerogative of mercy - Print Version

By: Cecil McCarthy

Source: Nation News

Published: August 4, 2010

IN LAST week’s article I discussed the doctrine of legitimate expectation as applied by the Caribbean Court of Justice in the case of Attorney General and others v Jeffrey Joseph and Lennox Boyce (“Joseph and Boyce”).

I will be returning to the subject of legitimate expectation in future articles.

However, in today’s column I wish to discuss the other significant issue that arose for determination in Joseph and Boyce; that issue is whether the prerogative of mercy by the Barbados Privy Council was subject to judicial review having regard to section 77(4) of the Barbados Constitution which provides as follows:

“The question whether the Privy Council has validly performed any function vested in it by the Constitution shall not be inquired into by any court.”

Charged jointly

In Joseph and Boyce, the facts were that Joseph and Boyce and two other men were charged jointly with the murder of a young man who was beaten to death. The four accused were given the option of pleading guilty to the lesser charge of manslaughter.

The other accused opted to plead guilty of manslaughter. Joseph and Boyce refused this offer and stood trial for murder, and were both convicted and sentenced to death. Their appeals to the Court of Appeal and the Privy Council were dismissed.

They petitioned the Inter-American Commission for Human Rights, alleging that Barbados violated its obligations under the American Convention of Human Rights.

Soon after the petitions were filed, the Barbados Privy Council (the body charged with the responsibility of advising the Governor General on the exercise of the prerogative of mercy) confirmed a previous decision not to recommend commutation of their sentence.

As a result, death warrants were read to Joseph and Boyce who then began proceedings alleging that the threatened execution was in contravention of their constitutional rights.

The CCJ held unanimously that the exercise of the prerogative of mercy was reviewable notwithstanding Section 77(4) of the Constitution referred to above.

One of the bases for review of the prerogative of mercy was procedural unfairness, which in the court’s view, was established in the case of Joseph and Boyce.

In the Third Edition of his book Commonwealth Caribbean Public Law, Professor Albert Fiadjoe of the University of the West Indies commented on the CCJ’s decision in respect of the reviewability of the prerogative of mercy in the following terms:

“This decision thus puts the nail in the argument which prevailed in 1966 when the Barbados Constitution became law – namely, that the exercise of the prerogative of mercy was not judicially reviewable, and that ousting the jurisdiction of the court could be valid.

“Thus, the Constitution would have been premised on the orthodox view that there was no possibility of the court’s powers under section 24 being applicable to any exercise of the prerogative of mercy, which was the exclusive preserve of the Governor General acting as directed by the Barbados Privy Council.

“But the court now says as did the Privy Council in Neville Lewis that, in the light of modern developments, the exercise of the prerogative of mercy is judicially reviewable and is not ousted by Section 77(4).”

Section 77(4) is an example of what is referred to as an “ouster clause”, a clause which seeks to exclude the court from reviewing the exercise of some power by a state body or official.

The response of the CCJ was that it will not be deterred, like previous decisions of the courts, by the presence of such a clause from inquiring into whether a body has performed its function in breach of fundamental rights guaranteed by the Constitution, and in particular the right to procedural fairness.

The decision of the CCJ is very important for “death penalty jurisprudence”. It gives a condemned man another lifeline, which can be of great significance when one considers the strict five-year time-line that has been established by the decision in Pratt and Morgan.

•Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, The Nation, Fontabelle, St Michael. Send your email to cnmc@caribsurf.com