The CCJ: an example to Latin America | Sir Ronald Sanders

BY: SIR RONALD SANDERS Two events at the Organisation of American States (OAS) in recent months have underscored the soundness of the system by which the Caribbean Court of Justice (CCJ) is financed.  It is a tribute to Caribbean creativity and innovation that the CCJ is one of the few Courts in the world that does not depend on government contributions to function. The example that the CCJ represents should be replicated elsewhere, and the people of the 14-nation Caribbean Community countries should take pride in the inventiveness of Caribbean minds in structuring the funding of the Court. The two events at the OAS that highlighted the reliability of the mechanism for funding the CCJ are related to the Inter-American Court of Human Rights and the Inter-American Commission for Human Rights. Both organisations declared that they are strapped for cash and desperately need contributions from the 34-member states of the OAS to continue their functions.  The two bodies are important. They are dedicated to the protection of human rights within the Inter-American system. Eminent Caribbean jurists have served on the Commission where they have advanced causes to combat scourges such as racism and discrimination. But, the Commission - set up by the OAS in 1959 — released a statement earlier this week in which it said things are so bad that mass layoffs and cancelled visits are imminent and inevitable, unless member countries provide emergency donations. Remarkably, it was donors from European countries, not Latin American and Caribbean nations, that have been keeping the Commission alive through donations. The President of the Commission, James Cavallaro, said the crisis was sparked by these European donors cutting back because of the influx of refugees from Syria and elsewhere. According to Mr Cavallaro, the withdrawal of European money has exposed the reluctance of Latin American and Caribbean governments to come up with the cash that the commission needs. In a caustic but frank comment, he said, “Some countries feel uncomfortable when the Commission highlights the challenges the region faces in human rights. They strangle us financially, perhaps in order to stop us fulfilling our mandate.” At a meeting of the Permanent Council of the OAS on 25 May only Panama, Costa Rica and Antigua and Barbuda offered to make immediate donations to the Commission. In the case of Antigua and Barbuda, I explained that Antigua and Barbuda greatly values the work of the Commission. I recalled the contribution made by my colleague, Sir Clare Roberts, when he served as a Commissioner, in ensuring that the rights of black people were specifically accepted as part of the Commission’s mandate as well as the obligation to tackle racism. I made the point that the reason that the Antigua and Barbuda government could not be more generous to the Commission is that, as a small state, we are marginalised by bigger and more powerful nations that deny us access to concessional financing for development; unfairly attack our financial services sector; treat us in world trade on the same terms as large countries such as the US, Canada, India and South Africa; and refuse to provide us adequate and affordable financing to combat the effects of Climate Change of which we are an innocent victim. Despite our own struggling circumstances, we made a voluntary contribution to the Commission as an example to other larger and richer countries of the importance of upholding and protecting human rights.  But, some Latin American governments dislike both the Commission and the Court, accusing them of being “political”. Venezuela’s President Nicolas Maduro, for instance, has dismissed criticism of his government’s legal pursuit of opposition leaders and general human rights record. Ecuador’s President Rafael Correa has also accused the body of “exceeding its authority” in its criticism of harassment of critical journalists who have criticised his regime. In the last two decades, the Commission has made ongoing efforts with the OAS Member States to secure a budget that would enable it to work effectively to fulfil its mandate. As a result of these efforts, the OAS General Assembly has approved a number of resolutions expressing a commitment to address the situation; however, these have not been reflected in a significant increase in resources. This situation is not surprising given the financial state of the OAS itself. Two of its largest member states are severely in arrears in their contributions to the Organisation and they vigorously resist any attempt to impose sanctions for non-payment. Indeed, the OAS is operating on a fictional budget that cannot realistically meet its costs of operation. In political organisations a financial crisis, while not sustainable, is bearable for a time. Not so with Courts and Commissions that are charged with upholding human rights and protecting minorities and the vulnerable. Thousands of victims of human rights violations throughout Latin America and the Caribbean would be left unprotected. That is why the CCJ model should be adopted by the OAS in relation to both the Court and the Commission. The CCJ is funded through an independent Trust Fund which was established with US $100 million from initial contributions of the member states through loans from the Caribbean Development Bank. Since its establishment in 2001, the Court’s expenditures have been met by the Fund, allowing it to function without having to go cap in hand to governments, and maintaining its flow of work in delivering justice. It is clear that some member governments of the OAS do not want an independent and functioning Court and Commission. It is up to others who believe in human rights and the rule of law to keep them from withering. The member states of the OAS that believe in democracy could do no better than to advance the adoption of the CCJ model for the Inter-American Court and the Inter-American Commission. In this, CARICOM has led the way – at least on sustainable funding. Source: http://www.barbadosadvocate.com/columns/caribbean-court-example-latin-america  (Sir Ronald Sanders is Antigua and Barbuda’s Ambassador to the United States and the Organisation of American States. The views expressed are his own. Responses and previous commentaries:www.sirronaldsanders.com)

More territories might join the CCJ this year

More territories might join the CCJ this year

Dear Editor,

We are in a new year and am certain before the end of December at least three more countries will abolish appeals to the Privy Council and accept the Caribbean Court of Justice (CCJ) as the final court of appeal. Others will soon follow.

The CCJ was established on February 12, 2001, and inaugurated on April 16, 2005, and so far only four countries ‒ Guyana, Barbados, Belize and Dominica ‒ have severed ties with the London based Privy Council, and despite several promises and commitments by other governments there is an inordinate delay in the others coming on board. However, recent developments lead me to believe that Jamaica, St Lucia, and Grenada will soon become full-fledged members of the regional court.

Jamaica with a population of more than 2.5 million has recently passed three pieces of legislation, paving the way for such a move, and its Foreign Affairs Minister, AJ Nicholson, said there was no turning back.

He told lawmakers that there is no need for a referendum to decide the issue. He said, “Let us tear down this referendum wall.” He disclosed that none of the 41 countries that left the Privy Council and established their own courts had gone the referendum route.

St Lucia’s Prime Minister, Kenny Anthony, has always been an advocate for the regional court and so has Grenada Prime Minister, Keith Mitchell, and now that a legal opinion has been issued by the Eastern Caribbean Supreme Court that a referendum is not required for those two countries to rid themselves from the Privy Council, moves have been made in this regard.

Meanwhile the Prime Minister of Antigua and Barbuda, Gaston Browne, and leader of the opposition United Progressive Party (UPP) have recently signed a Memorandum of Understanding (MOU) on constitutional reform for a bi-partisan approach. The MOU was signed in the presence of the President of the CCJ, Sir Denis Byron, who was Chief Justice of the ECSC.

The new Prime Minister of Trinidad and Tobago, Keith Rowley, is also in favour of the regional court since he questioned his predecessor, Kamla Persad Bissessar about why she only wanted to go half way ‒ abolishing appeals to the Privy Council in criminal matters alone.

Fourth term Prime Minister Ralph Gonsalves of St Vincent and the Grenadines is a strong advocate of the CCJ, but his attempt to join the court failed in a referendum. He might pursue it after he settles into his new term, and the St Kitts/ Nevis Prime Minister will also be encouraged to join.

Yours faithfully,
Oscar Ramjeet

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Article from Stabroek News: http://www.stabroeknews.com

URL to article: http://www.stabroeknews.com/2016/opinion/letters/01/12/territories-might-join-ccj-year/

Adjournments blamed for CCJ court delays

Adjournments blamed for court delays

ANTOINETTE CONNELL, antoinetteconnell@nationnews.com

No case should be pending for ten years, and something must be done about the Caribbean Court of Justice’s (CCJ) constant criticism of Barbados’ drawn-out justice system, says new High Court judge Pamela Beckles.

She blamed the clogging of the system on judicial officers taking too long to give decisions, lack of police files and too many adjournments. 

“I have a problem with reserving decisions for too long because if you wait for so long, you can’t remember although you have your evidence book.

“All of us are responsible for this delay – the judicial officer, the defence counsel, the accused. It is something we have to deal with. We have to do something about that criticism we keep getting from the Caribbean Court of Justice. There is no way no case should be in the system ten years; I don’t care what type of case it is.”

Please read the full story in today's Daily Nation, or in the eNATION edition.

New CARICOM Chair, PM Dean Barrow shares plan

By Ingrid Fernandez, Staff Reporter

Prime Minister Dean Barrow took over the chairmanship of CARICOM this week, emphasizing on the major issues facing the Caribbean in the year to come.

Barrow expressed optimistism over the prospects the Caribbean has, amidst the economic crisis most Caribbean countries face. He stated the economic challenges might be “the sternest economic test that our member states have had to face in recent memory.”

He noted that elevating the standard of living of member states’ civilians has been a challenge for the region, as most countries have faced an increase in foreign debt and poverty this year.

Under his leadership, Barrow, hopes the Caribbean will build economic, environmental, social and technological resilience to foster sustainable development.

The Prime Minister’s priority is on the issue of consolidation and he expressed hope that during his year of leadership, the arrangements made for Caribbean unity will be revised with the hope of making them more effective. Regional unity continues as a resounding message for Caribbean leaders.

Barrow highlighted the achievements the region enjoyed, making reference to the success of the Caribbean’s input at the COP21 and other achievements over the past years. He said these are benchmarks in keeping together as a region.

The leader of the country also mentioned the importance of the Caribbean Court of Justice, especially to shape identity and regional unity. He says he believes that having a regional appellate reflects on the level of intellectuality in the Caribbean and the region’s ability to manage its own affairs.

Crime, Barrow stated, is one of the worst social ailments prevalent in the Caribbean. He assures that this year, the member states will implement new forms of dealing with crime, especially focusing on grassroots movements.

Barrow acknowledged the Prime Minister of Barbados, Freundel Stuart’s guidance over the past year and resolved to continue strengthening Caribbean integration under his one year leadership.

Source: http://www.reporter.bz/general/new-caricom-chair-pm-dean-barrow-shares-plan/

Senator Falconer Proposes Live Broadcasts of CCJ Hearings - Jamaica Information Service

Senator Falconer Proposes Live Broadcasts of CCJ Hearings - Jamaica Information Service

Minister with responsibility for Information, Senator the Hon. Sandrea Falconer, is proposing that live broadcasts or streaming of appeals be considered for use at the Caribbean Court of Justice.This, she said, is in order to “widen and deepen the understanding of the workings of the CCJ.” 

Senator Falconer was making her contribution to the debate on the three Bills to establish the CCJ as Jamaica’s final appellate body in the Senate, on November 13.

Through these Bills, it is the intention of the Government to separate Jamaica from the Judicial Committee of the United Kingdom (UK) Privy Council, and to become part of the CCJ in its Appellate Jurisdiction.

Minister Falconer argued that acceding to the CCJ will afford all Jamaicans an equal opportunity for justice. She lamented that access to the Privy Council has been elusive for many Jamaicans, mainly due to the prohibitive costs associated with taking a case to that body.

“It is really the rich, private citizen or the relatively well off private businesses or those appealing death penalty decisions who receive pro bono help from local and English Counsel who can access the Privy Council,” she said.

Senator Falconer  said that in her estimation, the cost of travel and accommodation for the CCJ is about 76 per cent less than that of the Privy Council and the cost of filing documents at the CCJ is 98 per cent less than that of the Privy Council.

The Minister noted that the CCJ is already utilising audio and video conferencing facilities to conduct hearings, so that litigants and their counsel are spared the financial burden of appearing physically in Trinidad, where the court is housed.

“I place considerable weight on arrangements that put ordinary people on the right side of the digital divide and importantly on the right side of the justice system,” the Minister stressed.

She further argued that a final appellate body from, and for the region will be particularly sensitive to the realities of the Caribbean and will properly reflect the status of Caribbean countries as sovereign nations.

The Minister  noted as well that Caribbean judges have unquestionable knowledge  of the nuances of the region’s cultures, philosophies and social constructs.

“My faith in supporting the three Bills which seek to make the CCJ Jamaica’s final appellate court, rests in the certain knowledge that regional judges are erudite and of unquestionable integrity and legal experience,” she said.

The Minister  said  that  based on its track record, there is no doubt that the CCJ will effect positive change in the social order of the Jamaican society by delivering justice which is accessible, visible, efficient and reflective of the country’s values and mores.

“The CCJ is our clear and present opportunity to build our own jurisprudence, framed by our own historical and social experiences and reflective of our values as a people who subscribe to the rule of law. We are at the cusp of another dimension of the fulfilment of our sovereignty. Let us rise to the occasion and complete the task of Jamaica’s accession of that appellate jurisdiction of the CCJ,” she said.

Bills being debated are the Constitution (Amendment) (Caribbean Court of Justice) Act 2015; the Judicature (Appellate Jurisdiction) Act, 2015, and the Caribbean Court of Justice Act, 2015.

The CCJ Bills were debated and passed on May 12 in the House of Representatives, where the Government enjoys the two-thirds majority needed to have them passed.  The Opposition voted against all three Bills.

The CCJ was established on February 12, 2001 through an agreement signed by the Heads of Government of CARICOM at their 22nd meeting in Nassau. It has two jurisdictions: an appellate and original.

CCJ celebrates 10th birthday

Trinidad and Tobago will in due course accept the Caribbean Court of Justice (CCJ) as this country’s final court of appeal, to replace the London-based Privy Council.

This view was expressed by the CCJ’s President Sir Dennis Byron, who formed this expectation based on statements being made by local officials. The question now is the timing for this to become a reality.

Sir Dennis, 77, a Leeward Islands scholar born in St Kitts and an attorney for almost 50 years, during which time he has held prestigious positions as a regional and international jurist, scoffs at the opinion of those who say the CCJ is inferior to comparable legal institutions abroad.

Q: Sir Dennis, the Caribbean Court of Justice is observing its tenth anniversary this month. Exactly what is there to be celebrating about?

A: (In his Henry Street, Port-of-Spain, headquarters of the CCJ Wednesday morning) I think we have a lot to celebrate including the fact we are in existence for ten years and it’s a great opportunity to serve the citizens of our region.

The court operates in two distinct jurisdictions: one is the original jurisdiction which deals with disputes arising out of the interpretation and application of the Single Market and Economy Revised Treaty of Chaguaramas. Secondly, final appeals from countries within the region. And during our existence we have done extensive work in both areas, 16 cases have been filed in the original jurisdiction.

One of them, which we all can remember, which received a lot of public attention is the matter where the young lady from Jamaica brought proceedings against the government of Barbados and that case demonstrated the relevance of the CCJ.

Therefore you do have something to crow about? 

(A slight smile) Well, I don’t like to use that concept but the point is we have in fact done a lot of work, it has been well done and it has been received by the persons who have benefited from the adjudication of the court.

In your 2011-2013 report you said words to the effect that one of the goals of the CCJ is to develop a strong regional jurisprudence system, yet there is this bugbear involving Trinidad and Tobago. Has that put a damper on your celebration?

(Decisively) No. I don’t think that Trinidad and Tobago is a bugbear (A heavy sigh). People have always been trying to get me to speak about what they call political will and I have tried to avoid that because …

Yes and I suspect that it would not be prudent to do so...?

(Interjecting) Well, No. No. It is not that I cannot do it but I am just saying I don’t agree with the perceptions that have prompted those questions. As I see it…if you look at government as an institution, the Government of Trinidad and Tobago has done a lot to support and develop the work of the CCJ.

That is true Your Honour, but isn’t it a fact that Trinidad and Tobago is yet to make the CCJ our final court of appeal, with Prime Minister Kamla Persad-Bissessar saying a few years ago this country was now willing to let the CCJ deal only with criminal matters from T&T?

Yes.

Therefore isn’t it correct to say that Trinidad and Tobago is not yet fully on board?

Well, you see again I do not like that language because in my opinion Trinidad and Tobago is fully on board with the court; it has signed the treaty establishing the court, it has paid up in full its financial contributions to the court’s operations.

The court was set up on the basis that it would be completely independent of political interference and one critical area of independence is financial independence, so the CCJ does not have to depend on the monthly or annual subventions from any member government. Consequently, a unique form of financing was developed through a (US)$100 million trust fund which is funded through the interests derived from that money. Trinidad and Tobago’s contribution to that was just over 29 per cent, approximately (US)$29 million and they paid that in full.

It is only one thing they have not done and that is abolish appeals to the Privy Council and establish the CCJ as its final appeal court.

In your view Sir Dennis, wouldn’t it be a more acceptable proposition for Trinidad and Tobago to make the CCJ its absolutely final court of appeal?

Of course. I think it is overdue. It would be better for Trinidad and Tobago, it would be better for the court. It would be better for the region as a whole if the vision of the founding fathers were fulfilled in this matter, so we are ready and willing to serve the community in this manner.

Your Honour, if my memory serves me right, I think the present T&T administration, when it was in the opposition, it came out against the CCJ complaining about its ethnic composition…?

Well the CCJ has a component of seven judges, the President and six others and the qualifications for being selected as a judge are very clearly spelt out. In making appointments the Regional Judicial and Legal Service Commission can only appoint 

people who apply to become judges and then those persons go through a competitive process. 

The criteria that is utilised is high moral character, intellect, analytical ability, sound judgement, integrity and understanding of people and the society.

Obviously, legal knowledge is a critical part of that and these are the factors that are utilised to ensure that the best candidates are selected.

Now, you have raised the issue of diversity here because that is what is really being said: that a court should somehow or other reflect persons that it represents and we all agree that that is desirable. Our court, however, cannot function on the basis of a quota system where you say you must have this number of persons simply because of the numbers.

But one has to trust that the issue of diversity is a factor which would be taken into account in the selection process.

Are you suggesting that a person of a certain ethnic background has not yet applied to be a judge of the CCJ?

(A somewhat perplexed expression) Well, I don’t know exactly what you expect me to say in response to that. If you look at the seven members of the court—you have an Englishman, a Dutchman, you have a Trinbagonian who is a woman of East Indian descent who is the most recently appointed judge, you have a judge from Jamaica, you have two from the Eastern Caribbean and one male judge from T&T. So I think you have quite a mixture which demonstrates that type of diversity of the court (which) is far superior to the diversity of courts from other countries.

Based on your interaction with the Trinidad and Tobago Government, perhaps even at the level of the Prime Minister, do you have any sort of indication about how soon this country would come on board fully?

Well, you use that word indication, I cannot speak to that, but what I can say is that expectation and I do think it is likely that T&T is ready to go forward. I have heard the Prime Minister saying that it is inevitable in this regard, the question really is when is the right time to do it.

And I further believe that her readiness to come on board would most likely be influenced by statements from significant constituencies in the country. The most important in this context is the Law Association and I felt really gratified when the new president of the association said last year T&T was now firmly committed to ensure that the CCJ became the final appellate of Trinidad and Tobago.

Your Honour where do you see the CCJ in the next ten years?

In the next ten years the CCJ will be firmly entrenched as the final appeal court for all countries of Caricom and in fact it is quite interesting, we have already received indications that courts which are not within the Commonwealth are making enquiries asking us what is the process of making the CCJ their final court of appeal.

Finally Sir Dennis, how do you view the dispensing of justice by the CCJ in comparison to that of let’s say the Privy Council?

There are many answers to that question and the one that is most relevant at the moment has to do with the opportunity for access to justice. Take, for example, the court of appeal in Trinidad and Tobago gives many judgements each year and very few appeals are made to the Privy Council. 

That could mean two things: litigants are satisfied and they do not want to appeal. It could also mean that if they want to appeal it is too expensive and complicated to do so...which is it?

If it is the latter, having the CCJ gives the citizens an opportunity to get access to justice in Trinidad and Tobago in that regard and that’s the experience we have had in the countries where the Privy Council is the final court of appeal.

Source: http://www.guardian.co.tt/news/2015-04-11/ccj-celebrates-10th-birthday

Published: 

Sunday, April 12, 2015 

Caribbean Court of Justice president speaks on selection of judges

BOSTON, United States, Wednesday October 9, 2013, CMC – 

President of the Caribbean Court of Justice (CCJ), Sir Dennis Byron, says a conscious and forthright statement of dedication to achieving diversity should be noted when the Trinidad-based regional court is considering the diversity of its judicial appointments.

Addressing the International Bar Association (IBA) 2013 Conference here, Sir Dennis questioned how the CCJ, established in 2001 to replace the London-based Privy Council as the region’s highest court, takes into consideration the diversity of its judicial candidates.

“Complicating this question even more is the fact that it is unlikely that the pool of candidates, itself, will reflect the full diversity of the population. So, what should we do and what can we do?,” he asked as he addressed the topic “Considering Diversity: The Judicial Process for the CCJ and Beyond”.

Sir Dennis who served as Vice Chair of the Judges’ Forum panel discussion on “Appointing Judges: diversity or simply the best?” said the judicial selection criteria contained within the agreement establishing the CCJ does not offer much assistance.

He notes that in making appointments to the office of Judge, the agreement outlines issues such as high moral character, intellectual and analytical ability, sound judgment, integrity, and understanding of people and society.

“To be fair, the agreement does contemplate diversity, but only in the sense of intellectual diversity. It includes provisions requiring the inclusion of judges with expertise in international law and international trade law and allowing for candidates that have substantial judicial experience or academic experience in either common or civil law systems.”

He said even though the agreement does give some latitude to address the concept of diversity, the CCJ judicial qualification criteria are not an aberration in this regard, making reference to the Statute of the International Criminal Tribunal of Rwanda that similarly focuses on merit and intellectual expertise.

Sir Dennis said even the updated Statute of the International Criminal Tribunal for the Former Yugoslavia uses identical language, leaving diversity entirely out of the statutorily required characteristics.

He said despite the fact that diversity is not listed in the selection criteria of the CCJ and other international tribunals, it does seem to be taken into consideration by those who are doing the selecting or the electing.

“While we cannot know the details of the discussion surrounding the appointment of the first panel of judges at the CCJ, we can see the result- a panel, of only seven judges but with differences including those of gender, colour, ethnicity, nationality, places of geographical origin, religion and background experience, Common Law and Civil Law.

“This difference between what is on paper and what actually transpires during the selection process seems to be quite common when we look at other courts,” he added.

But he said he does not think that these informal practices and conventions as practiced by some international courts also are quite enough to address the issue of diversity and public perception. “Projecting a diverse and inclusive face – one that reflects to some degree the population that is served – should be a priority for every court. And I suggest that for the CCJ, a court that has been tasked with deepening regional integration, this is even more important and more urgent.

“We take this charge seriously, and we have strived to employ a regional work force, to represent the diversity of the region in the official languages of the Court, to sound like the region in the accents you hear on our phone system, to look like the region in the faces and flags you see on the website. I think it is time to make this same dedication to regional diversity explicit in our judicial selection process.”

Sir Dennis said while a quota system can never be appropriate for the CCJ, given the sheer range of diversity in the region, he believes “that a conscious and forthright statement of dedication to achieving diversity as part of achieving the best CCJ bench, would be an enormous step in the right direction.

“Of course one must vigorously maintain that the qualities of sound intellect, extensive learning in the law and good character cannot be minimised or sacrificed.”

But he told the international conference that diversity should not be a tie-breaker, as it is in the International Bar Association’s Human Rights Institute Resolution (2011), but a fundamental consideration in the selection of the Bench from the range of candidates who are up to the standards required of a judge of the relevant court.

“It should make the Bench as a composite, better than a mere aggregation of the individuals on it. It should not be portrayed as ‘diversity or merit’ or even ‘diversity and merit,’ but as ‘diversity as a vital component of merit.”

But he said that the solution comes at a price and cannot beautomatic or magical.

“It is not up to the court or its selection process alone. The price may involve an element of public service. No one can be appointed to the CCJ Bench who does not apply, and it is well known in the Caribbean, that the levels of remuneration at the highest levels of the legal profession exceed that of the Bench.

“Let us be honest and upfront about the role of diversity in the Caribbean region. I think it would do much to send a signal to the people of the region that while every religion, ethnicity, and nation cannot be represented simultaneously on the bench, we do pay attention to these things and they are taken into consideration openly and honestly in the development of Caribbean jurisprudence,” he told the conference.

Read more: http://www.caribbean360.com/index.php/news/1031923.html?print#ixzz2jzEvETA7

Experts say Myrie ruling is a turning point for regional integration

BRIDGETOWN, Barbados, Tuesday November 5, 2013, CMC 

Almost a month after the Trinidad-based Caribbean Court of Justice (CCJ) ruled that Barbados had breached the rights of a Jamaican national when she sought entry into the country in 2011, regional stakeholders say the judgment represents a turning point for the regional integration movement.

The CCJ was established in 2001 to replace the London-based Privy Council as the region’s final court, but while many Caribbean Community (CARICOM) countries are signatories to its original jurisdiction, only Barbados, Guyana and Belize are signatories to the appellate jurisdiction of the court that also serves as an international tribunal interpreting the Revised Treaty of Chaguaramas that governs the integration movement.

At a panel discussion at the Cave Hill campus of the University of the West Indies earlier this week, panellists examined the implications of the CCJ ruling in the Shanique Myrie case in which Barbados was also ordered to pay BDS$75,000 (one BDS dollar = US$0.50 cents) in compensation.

Myrie, who had been granted leave by the CCJ to file the action, alleged that when she travelled to Barbados on March 14, 2011 she was discriminated against because of her nationality, subjected to a body cavity search, detained overnight in a cell and deported to Jamaica the following day.

Myrie also claimed that she was subjected to derogatory remarks by a Barbadian Immigration officer and asked the CCJ to determine the minimum standard of treatment applicable to CARICOM citizens moving around the region.

Barbados Attorney General Adriel Brathwaite said that while the introduction of free movement within CARICOM though noble, it was not properly thought out.

Highlighting Barbados's concerns, he said there were not enough structures in place to ensure free movement work and if the region doesn't get it right, there will be chaos.

“We're faced with a situation where we are concerned about whether or not we have the capacity not only to provide housing for all of our people but for those of us, those people from the region who we would love to come to live with us.

“But we can't invite people to come and live with us and then we have six and eight people living in a room, sharing one bathroom etc., (these) kind of stories you hear from time to time.

“We have the whole issue of education. We, to the best of my knowledge are about three secondary schools behind where we would like to be and probably three or four junior schools from where we would like to be. If we want to invite our brothers and sisters we want to ensure that they also have access to education,” he said.

Brathwaite insisted there's nothing earth shattering about the Myrie judgement and that Bridgetown has already made moves to re-train its border personnel in keeping with the CCJ ruling.

But he stressed that all member states must follow suit to make free movement a reality.

“What we were doing is that we were granting three months initial and then if you want an extension come back and give us a chance so we can get an idea in terms of what you are doing, what you are up to and if you needed the additional three months then they will give you the additional three months.

“All it means now from a particular perspective is that you want the six months and rather than having the mechanism where you need to come back to us, if we think there are issues we will go to you. It means that we will have to have some additional bodies on the ground immigration-wise but that's what happens in most countries.

“So that's why I said it is really not a major issue. What might be the major issue would be the fact that we really have to change psyche of many Immigration Officers across the region. I have been in St Kitts going into Nevis and been asked how come I am going into Nevis so often? I have been asked that. So it is not a case where it only happens in Barbados,” he added.

But Dean at the UWI Faculty of Law, Dr David Berry, believes it is important Caribbean people are educated about their rights under the Treaty of Chaguaramas. He said the treaty does not in fact grant freedom of movement.

“It grants freedom of movement in Article 46 to CARICOM Skilled Nationals, certain categories of persons. So what the revised treaty does have is another provision which says towards the goal of free movement we will try to do these things.

“So Article 45 talks about a goal of free movement and Article 46 is of one instance of free movement. So the revised treaty itself, and this was argued before the court, does not give a full blown right of freedom of movement.”

He said the regional leaders at their conference in 2007 created in a sense a right of free movement. “They created an automatic right to enter and stay for six months subject to sufficiency of funds...you will not become a burden on the public purse and that you are not undesirable. So those are the two criteria.”

But Dr Tennyson Joseph, the head of the Department of Government, Sociology and Social Work at the university said the Myrie ruling has forced the region to rethink the concept of sovereignty.

He said the region's current economic troubles have also led some governments to look inward, moving away from the vision of deeper integration articulated by the framers of the “Time for Action” report who laid the foundation for strengthening of CARICOM and the integration movement.

“Whether or not the rationale that they identified which forced them to ask for a revised treaty, has either deepened or diminished, I would say that the challenges are greater. But because the challenges are greater one of the tendencies is for us to become regionalist instead of xenophobic.

“Instead of redefining sovereignty towards more regional framework, we turn inwards. Hitler faced a similar issue in his time in the First World War period, where he was facing an economic crisis and you know which choice that he took.

“Sovereignty is malleable, that the nation of citizenship is malleable. Globalization has raised new questions about what is a citizen. What is a state and what sovereignty,” Joseph added.

Another academic, Orlando Marville, the coordinator, Law, Governance and Society at the UWI said political leaders must do more to build a community.

He said ordinary citizens were making integration a lived reality and it's time for the political directorate to speed up the process.

“Very often ordinary people sometimes appreciate the community that we have more than the political agents. We sometimes make promises or agree to things that they know that they are not going to do, until come back to bite them.

“We have to have the sort of commonness that exist for instance among our musicians. I have been in Suriname and heard Surinamese sing bits of songs from Kross Fyah (in Barbados). Alison Hinds sings a song from Suriname as part of her thing and these musicians all believe in our community.

Read more: http://www.caribbean360.com/index.php/news/barbados_news/1082850.html?print#ixzz2jzDEWAKP

CCJ to hold sittings in Jamaica and Barbados for Shanique Myrie case

CCJ to hold sittings in Jamaica and Barbados for Shanique Myrie case
Source: Caribbean 360

PORT-OF-SPAIN, Trinidad, Tuesday March 5, 2013 – The Trinidad-based Caribbean Court of Justice (CCJ) will hold its first ever sitting in Jamaica next week to hear evidence from witnesses in the case in which a Jamaican national has sued Barbados.

Shanique Myrie, 25, who was granted leave by the CCJ to file the action, alleges that when she travelled to Barbados on March 14, 2011 she was discriminated against because of her nationality, subjected to a body cavity search, detained overnight in a cell and deported to Jamaica the following day.

Myrie also claimed that she was subjected to derogatory remarks by a Barbadian Immigration officer at the Grantley Adams International Airport and is asking the CCJ to determine the minimum standard of treatment applicable to CARICOM citizens moving around the region.

On September 27 last year, Jamaica was granted leave to intervene in the matter.

Myrie, through her attorneys, informed the CCJ that she could not afford to bring her witnesses to Port- of-Spain for the hearing and therefore she was unable to adequately present her case to the Court.

The CCJ said that it had explored the use of videoconferencing technology to take the evidence of the witnesses, but after consulting with attorneys it was decided that the evidence should be given in person and for this purpose the Court will sit in Jamaica to hear the evidence of the witnesses for the Claimant and the Intervener.

The CCJ will sit at the Jamaica Conference Centre from Monday until Friday and will hear testimony from 10 witnesses. It said it is paying for the costs of the sitting which include airfare, accommodation and its other expense while the Jamaica government will provide security for the Court.

The CCJ said it would also sit in Barbados from March 18 to 22 to hear the evidence of the witnesses of the Defendant.

The CCJ was established in 2011 to replace to London-based Privy Council as the region’s final court of appeal. It has both an original and appellate jurisdiction and also serves as an international tribunal interpreting the Revised Treaty of Chaguaramas that governs the 15-member Caribbean Community (CARICOM) grouping including the CARICOM Single Market and Economy that allows for free movement of within the grouping.(CMC)

Jamaican Gay Man Takes Belize, Trinidad to Court Over Discriminatory Immigration Laws

Jamaican Gay Man Takes Belize, Trinidad to Court Over  Discriminatory Immigratiion Laws

Wed, July 17, 2013 Source: Channel 7 Daily News Published : July 17, 2013

The country is waiting patiently for Chief Justice Kenneth Benjamin to rule  on the UNIBAM challenge to Belize’s Sodomy Laws. Well, before that  decision is handed down, another of Belize's sexually discriminatory laws  is being challenged at the highest court in the land, the Caribbean Court  of Justice. Viewers may remember, Maurice Tomlinson, the Jamaican Gay Activist who  turned down UNIBAM’s invitation to conduct sensitization sessions.  He did that because he discovered that under Section 5 of Belize’s  Immigration Act, he would be breaking the laws to enter the country  to conduct this workshop. This section states that prohibited immigrants include, quote  "Any prostitute or homosexual who may have been living  off or receiving proceeds of prostitution or homosexual behavior," end quote. Tomlinson, who is married to a Canadian man, says that this law violates  his right to freedom of movement within the Caribbean Community. Trinidad and Tobago is the only other member of CARICOM which  shares immigration laws similar to this one, and as a result, he has taken a  challenge to the CCJ – in Trinidad - forcing both countries to respond. Tomlinson has been to Belize twice, and in both visits, Belizean authorities  did not enforce this law against him, so his home nation, Jamaica, has  decided to stay out of this issue because his rights have not actually been  violated. His matter was called up today and via teleconference and Government  Representatives from both countries presented themselves for case  management. Because Jamaica has refused to intervene as a state, Tomlinson’s attorney  notified the CCJ judges’ panel that they were making an application for  special leave to be heard as an individual. That’s important because this is what’s known as an original jurisdiction matter,  and only states can usually be granted such access to the court. Nontheless, there are exceptions and the court has scheduled this application  hearing for November 12. If Tomlinson can provide a strong case, the court  will grant him leave to bring his challenge to both countries’ immigration laws. Deputy Solicitor General Nigel Hawke is the lead attorney representing the  Government of Belize, along with other Crown Counsels from the office of the  Solicitor General. We’ll keep following this story as it develops.

The CCJ And The Death Penalty

Published: 

Sunday, May 19, 2013

DR HAMID GHANY 

Source: Trinidad Guardian

Last week in the Senate an interesting exchange took place between Attorney General Anand Ramlogan and some PNM senators during the period set aside for questions to ministers. The essence of the argument was that the Attorney General indicated that he could prepare a draft bill within 48 hours on the death penalty. 

He then challenged the PNM senators to state for the record whether they would be willing to support the abolition of appeals to the Privy Council on criminal matters only and to substitute the Caribbean Court of Justice (CCJ) as the final court of appeal for criminal matters only. There was no response from the PNM senators on this point and so the issue ended in a stalemate.  

However, what emerged was that the Government is still committed to the idea of having the Judicial Committee of the Privy Council replaced by the CCJ as the final court of appeal for criminal matters, while simultaneously moving forward with an amendment to the Constitution to oust the jurisdiction of the court from challenging the constitutionality of the death penalty.

In order to accomplish all of this, such legislation would require a three-fourths majority in the House and a two-thirds majority in the Senate. The last time that the capital punishment legislation was brought to the House, in February 2011, the Opposition PNM did not support it and the bill died at that stage.

The matter was recently revived by the Prime Minister when she indicated at a UNC Monday Night Forum in Barataria some weeks ago that she was prepared to bring that legislation back to Parliament. The Attorney General has now revived the earlier proposal for the substitution of criminal jurisdiction of the Privy Council with the CCJ. The heart of the story lies in the approach that has been adopted by the Privy Council over the years in respect of the death penalty in the Commonwealth Caribbean. 

Since it was established that the death penalty is indeed a proper form of constitutional punishment in the case of De Freitas v Benny (1976)AC 239 where Michael de Freitas, also known as Michael Abdul Malik, had his death sentence confirmed on the ground that it was not “cruel and unusual punishment” to hang him for the murder of British socialite Gale Ann Benson at Christina Gardens in Arima, there have been twists and turns over the years. 

Coming out of that same murder, Stanley Abbott had had his death sentence confirmed in the case of Abbott v Attorney General (1979)1WLR 1342 where Lord Diplock set aside the issue of delay of execution measured in months, owing to the transition of T&T from monarchical to republican status in 1976. However, he left open the issue of delay of execution measured in years and that would prove to be a game-changer for the death-penalty debate in years to come.

In 1982, the Privy Council divided three-two in favour of carrying out the death penalty in the Jamaican case of Riley and Others v Attorney General (1982)35 WIR 279 whereby the issue of delay of execution measured in years was not overcome by the human-rights issue of delay of execution rendering invalid the actual execution itself thereby making it “inhuman and degrading punishment.”

Lords Diplock, Hailsham and Bridge were in the majority, while Lords Scarman and Brightman were in the minority. Some 11 years later, in the landmark case of Pratt and Another v Attorney General of Jamaica (1993)43 WIR 340 the Privy Council accepted the argument of delay of execution as rendering the death sentence unconstitutional if it is not carried out within five years of the sentencing date.

By this time, Lords Diplock and Hailsham had left the bench and some less-conservative judges had been appointed to the British House of Lords as Law Lords. This ushered in an era of abolitionist judges as members of judicial panels who were prepared to adopt an approach that placed them at loggerheads with Commonwealth Caribbean governments on the issue of the death penalty.

Several cases were quite controversially decided that raised issues of whether this was “judicial politics” at work as opposed to the application of existing law. One of them was the Guerra v Baptiste case (1996)1 AC 397 from T&T, which admonished the State for trying to carry out the execution of Lincoln Guerra too swiftly for the murder of Leslie Ann Girod and her baby in Wallerfield.

By 2000, the Jamaican case of Lewis v Attorney General (2001)2 AC 50 constructively abolished the death penalty in the region when the Privy Council held that the decisions of the Mercy Committee were now reviewable, which overturned the ruling in De Freitas v Benny, that states must now await the responses of international human-rights bodies on petitions of reprieve before carrying out executions, and that prison conditions must be taken into account.

Other controversies have arisen over mandatory and discretionary sentencing. However, the death penalty remains in limbo, with the Privy Council precedents holding firm.

Under Scrutiny: Desist in the name of ‘sub judice’!
Source: Barbados Avocate
Published: 4/22/2013
By Stephen Alleyne

During the Barbados leg of the Shanique Myrie hearing before the Caribbean Court of Justice (CCJ), a number of callers on the radio call-in programmes sought to discuss the evidence as it unfolded, only to be reminded by the hosts, and some callers, that the matter ‘was sub judice’, that is, under judicial consideration. The hosts, in other words, preferred they didn’t go there for fear that their stations could be cited for contempt of court since the matter was yet to be decided. 

The sub judice rule was developed to regulate the publication of matters which are under consideration of a court; and, it has been suggested that a criminal matter is under the consideration of a judge from the time it becomes active, active here taking on a broad meaning. That is (1) once the accused is arrested, (2) a warrant has been issued for his arrest, (3) a summons has been issued for his attendance on an information, or (4) he has been charged. However, the better view is that expressed in (3) and (4) above and followed in R v Duffy and Others, Ex parte Nash [1967] 2 QB 188: 

“[I]t is clear on the authorities that proceedings are pending in this sense from the time that a person is charged even though he has not been committed for trial.” 

Proceedings, according to the cases, cease to be active or are finally over “when the Court of Criminal Appeal (I’d say the final court of appeal, which in Barbados is the CCJ) has heard and determined the appeal, and after that time they are in no peril of being dealt with for contempt of court.” – Delbert-Evans v Davies and Watson [1945] 2 All ER 167. 

Not everything that is published about a matter that is sub judice offends the sub judice rule, however. Media practitioners know that a fair, accurate and contemporaneous report of proceedings in public before a court is protected by absolute privilege under the Defamation Act, Cap. 199. Trouble can surface, however, when the media impose their opinion on the facts of a case, and this is where they have to be extremely careful. In spite of the risk, the media must not be afraid to allow members of the public to have their say in proper cases. 

An article published in a newspaper or broadcast over air concerning a matter that is sub judice is only a contempt of court if in the circumstances existing at the time of publication the article was intended or calculated to prejudice the fair hearing of the proceedings. The media in the name of the sub judice rule must therefore not stifle public discussion in cases of significant public interest like the Myrie case. In determining how far they can go in giving their views and permitting public discussion on sub judice matters, the media must have regard to the nature or composition of the court. Judges, unlike juries, are trained to guard themselves against prejudicial comments and extraneous influences. 

Hence, it is difficult to envision what could be said in the media to influence or prejudice the decision of a panel of Court of Appeal or CCJ judges. 

So, this hard and fast policy of the media in not allowing callers or writers to discuss judicial matters of any kind is, I suspect, either originated out of ignorance or misadvice.