Antigua-Barbuda prepares to join Guyana, others at Caribbean Court of Justice

Source: Demarar Waves

Antigua and Barbuda appears poised to join Guyana and several other Caribbean Community (Caricom) member-states in having the Caribbean Court of Justice (CCJ) as the final court of appeal.

A three-month public education campaign was launched on Thursday in that twin-island nation as the government prepares to hold a referendum to determine whether to replace the London-based Privy Council as its apex court with the Trinidad-based CCJ.

The campaign, which has bi-partisan support, will span three months on a budget which government said will exceed 2 million Eastern Caribbean dollars.

While no date has been set, the government hopes to hold the referendum in June.Already using the CCJ as their final court of appeal are Guyana, Barbados, Belize and Dominica.

Demonstrating a united front, Prime Minister Gaston Browne and Leader of the Opposition United Progressive Party (UPP) Baldwin Spencer who were both at the head table at the launch, urged the electorate to choose the CCJ, contending it will provide easier access to justice.

Spencer noted that “true freedom” will only come when the country and region move from a position “where colonialism and imperialism controlled our decision making processes to a position where we are not only a free people, but we have to make sure we form a society in which our decision making processes are ours.”

Supporting Spencer, PM Browne made “a clarion call for all registered voters in Antigua and Barbuda to support this important institution of regional Governance and sovereignty.”

He said the current final appellate court “is clearly an outmoded colonial construct that was designed exclusively for the wealthy few and has failed to provide broad-based accessibility and dispensation of justice to the masses.”

Elaborating on Spencer’s point on access to justice, PM Browne said justice is not only delayed because of the remoteness of the Privy Council but, in many instances was denied because of inaccessibility associated with the prohibitively high costs.

“Even today, justice is being denied to the majority of our people who find it cost-prohibitive to take their case to the Judicial Committee of the Privy Council,” he said.

“Having the CCJ as an all-inclusive final appellate court, will cure this egregious injustice of exclusivity that has plagued us since 1834,” Browne said, while adding that the fact that the CCJ is an itinerant court (travelling court) will help offset costs for litigants.

Former attorney general Justin Simon QC noted that between 2007 and 2014 about a dozen cases from Antigua and Barbuda were taken before the Privy Council, while over 30 cases were taken before the CCJ which was inaugurated in 2005 and which also serves as an international tribunal interpreting the Revised treaty of Chaguaramas.

Simon said the statistics suggest there is a serious problem of a lack of access to justice as he pointed to two cases where litigants spent hundreds of thousands of dollars to cover legal expenses before the Privy Council.

In a video message, Caricom Secretary General Irwin LaRocque also expressed support from the proposed move, stressing it will “complete the country’s circle of independence.”

He said the court was set up with the highest levels of international standards and steps were taken, and remain in place to ensure there’s no political interference in the management and operations of the court.

According to him, the CCJ is also staffed with some of the “highest intellectual minds” and “there’s no other court in the world as independent” as the CCJ since it is funded under a unique trust fund arrangement and does not have to rely on governments for money.

Another point noted was that the judges are not appointed by the heads of government.

CCJ President Sir Dennis Byron, who applauded the main opposition UPP and the ruling administration for dealing with this issue with “political maturity”, said there’s no evidence justifying public concern of political interference, while he highlighted that the “high quality” judgments of the court are readily available for public perusal.

Explaining the system used to ensure the financial independence of the institution, he said, “The financial arrangements of the court included the establishment of a trust fund where member states invested US$100 million with the expectation that the interest of that investment would fund the court in perpetuity.”

Meanwhile, head of the education campaign mission, Ambassador Dr Clarence Henry said in order for the national referendum to be executed, elections rules must be drafted and that is currently being done by Dr Francis Alexis, a constitutional lawyer based in Grenada.

“He has been provided with all necessary legislation from which draft rules for the referendum will be drawn, in consultation with the Antigua and Barbuda Electoral Commission and there’s also a parliamentary process to be followed,” he reported.

On Friday morning, there will be another session which will be led by youths. Henry said the aim is to ensure the public is sensitised adequately to participate in the referendum which requires a two-thirds favourable majority to allow for the move from the Privy Council to the CCJ.

Source: http://demerarawaves.com/2016/03/11/antigua-barbuda-prepares-to-join-guyana-others-at-caribbean-court-of-justice/

CCJ dismisses TCL contempt filing against Guyana

Source Stabroek staff Published : April 1, 2010 |

The Caribbean Court of Justice (CCJ) on Monday dismissed contempt proceedings against Guyana filed by Trinidad Cement Limited (TCL) and a subsidiary company, which arose last year when this country failed to reinstate the CET on extra-regional cement following an order of the court.

When its judgment was read, the CCJ also dismissed the claims for orders relating to civil contempt against Attorney General, Charles Ramson SC. The CCJ held that it had no jurisdiction to make any such finding against Guyana, but it also noted that no claim for such a finding of contempt against this country had been made either in the original or amended application of the applicants; TCL and its subsidiary, TCL Guyana Incorporated (TGI).

In its ruling, the CCJ said the oral claim against Guyana was not properly raised and so it was not entertained. However, it was noted that on January 8, 2010, almost four months after the grace period fixed by the Order had expired, Guyana reinstated the CET in respect of all non-CARICOM cement imported here. The CCJ did grant a declaration that Guyana was in breach of Article 215 of the Revised Treaty of Chaguaramas, which mandates CARICOM member states to comply with judgments of the CCJ promptly.

With respect to the claims against the Attorney General, the Court ruled a coercive order should not be made against someone who is not a party to the proceedings. It said there was no evidence that the AG here was personally responsible for the breach of the Order, or that the AG, as a non-party, was responsible in his official capacity for the reinstatement and maintenance of the CET on cement from non-CARICOM sources.

TCL had applied for leave to amend its application to include a claim for the declaration that Guyana was in breach of Article 215 and the Court granted leave after Guyana had no objections. Counsel for Guyana later resisted the claim, saying that since the amendment had only been granted after the Order of August 20, 2009 had been complied with, the question of whether Guyana was in breach of Article 215 was academic. Counsel argued that Courts were reluctant to grant declarations that served no useful purpose.

In breach

Trinidad and Tobago, in its submissions as a State Party invited to join the discussion, accepted that the Court could find a State Party to be in breach of obligations in Article 215 to comply with the Court’s judgment promptly. The CCJ found that there was ample evidence that Guyana did not comply promptly, noting that this country’s application for an extension of time for compliance with the Order was an admission that it had not complied.

In its submissions, Guyana had contended that the Order of Court was “not without some indicative element of equivocation.” Counsel for Guyana had argued that it was not the Order that re-imposed the CET. Counsel said also that the Order left Guyana free to “implement” or “complete” the CET and to “maintain” the CET “only from that date,” i.e. the date of reinstatement. But the Court said this was disingenuous, pointing to a November 13, 2009 case management conference where counsel for Guyana conceded that the country was in breach and continued to be in breach of the Order by restricting the application of the CET to imports of non-CARICOM cement ordered after October 15, 2009. The Court said its emphasis was on cement imported and CET collected after September 17, 2009 and it held that there was no ambiguity in the Order and that Guyana’s breach of it was unlawful.

The case against Guyana raised significant issues and triggered an interesting discussion at the level of the Court; it also resulted in critical submissions from Trinidad and Tobago, after an invitation was extended to state parties to make written and oral submissions on the question of civil contempt of Court issues.

What emerged from the discussions was that there is need for a protocol amending the Revised Treaty, to make clear what forms of contempt the Court can deal with and what sanctions it can impose on those whom it holds in contempt. In the interim, the Court said it will express only provisional views on such matters in the hope that “the difficulties of interpretation which emerge will be eliminated by an appropriate protocol to the Revised Treaty.”

The Court pointed to several questions which arose during its deliberations and out of the submissions canvassed before the court. It questioned what is the meaning of “contempt of court” in the context of Article 26 of the CCJ Agreement and whether the agreement give the Court jurisdiction to entertain proceedings for civil contempt. The Court also pondered, among other issues what impact, if any, does municipal legislation incorporating the CCJ Agreement have on the jurisdiction of the Court.

No inherent jurisdiction

The concept of civil contempt (disobedience of court orders) as an affront to the court is not known in the civil law and the question arose as to whether civil contempt exists in international law. The Court said that even though civil contempt was unknown to international law, states may confer that power on a tribunal by agreement. The CCJ noted in his judgment that ‘contempt of court’ is a common law concept that has no equivalent in the civil law system. It stated that even if the civil contempt of court were recognized, on the international plane it is evident that the common law concept of contempt of court must undergo some metamorphosis if it is to operate in a different setting “within the basic structure of the international community.” It said further, that in non-criminal cases the common law sanctions for contempt of court, i.e. (1) imprisonment; (2) sequestration; and (3) fines, may have to be adapted to take account of the fact that the states are the defendants and cannot be imprisoned, and that regional international courts, have no tipstaff or goals except where treaties provide so.

The CCJ continued: “When one transplants civil contempt of court into the international arena among nation states, the primary sanction is a declaratory finding of contempt or non-compliance with the Court’s order.” It noted in the result that such a declaration is similar to the one available under Article 215 of the Revised Treaty (where the obligation is to comply promptly).

However, the CCJ found that no express power to entertain contempt proceedings is granted in Article 26 of the CCJ agreement. Further, it pointed out that one could not extrapolate from the ad hoc international criminal tribunal cases that international courts have an inherent jurisdiction in civil contempt in non-criminal cases.

The CCJ panel included Justices Michael de la Bastide, who is the President of the Court, together with Justice Nelson; Justice Saunders; Justice Wit and Justice Hayton.

The applicants were represented by Dr C Denbow, SC appearing with D Denbow, D Rohlehr and K De Freitas; the respondent by Kamal Ramkarran and Trinidad and Tobago by Douglas Mendes SC along with M Quamina, E Pierre, G Jankey and S Ramhit.

Guyana prosecutors now allowed to appeal verdicts
Source: Associated Press Published : 2010-03-20
Legislators have approved a bill that will for the first time let prosecutors appeal verdicts and allow police to immediately re-arrest suspects in this South American country. Prosecutors can appeal all the way to the Trinidad-based Caribbean Court of Justice _ the highest judicial body for much of the region _ but opposition leaders and attorneys said they will challenge the bill. "Given the pace at which our courts work, this could mean a virtual lifetime in prison for some offenders who win their cases," opposition lawmakers Khemraj Ramjattan said Friday. The state can now appeal jury acquittals for murder, treason, sexual offenses, piracy, carjacking and drug trafficking cases, among others. Ramjattan said attorneys are researching whether such actions are allowed in other former British colonies. Legislators who approved the bill late Thursday said the state wants the right to appeal decisions in cases where there might have been trial irregularities, misdirection from a judge or suppression of evidence.

Guyana seeking regional support to settle cement impasse
Published - Thursday, January 7, 2010
Source: Caribbean Net News

GEORGETOWN, Guyana -- Guyana is seeking to urgently resolve the impasse with the Trinidad Cement Limited on the removal of the common external tariff on cement imported from extra regional sources say foreign affairs minister Carolyn Rodrigues-Birkett.

The Foreign Minister said Monday that the matter, which is of importance to the entire Caribbean, would be raised at the next Council for Trade and Economic Development (COTED) meeting to be held here from February 4 to 9.

The matter is high on the agenda as it can have significant negative impacts on the local construction sector if not resolved urgently.

She has raised the matter with officials from other CARICOM states who are facing similar problems with the Trinidad-based cement company.

“I have been in discussion with several of my colleagues (Caribbean Foreign Ministers) and this hopefully, will be one of the first issues to be discussed at our next COTED and Guyana is looking to have this issue resolved in such away, that our business can continue, and our construction workers would not be hindered,” Rodrigues Birkett said.

Guyanese authorities had indicated that the removal of the CET from the commodity was based on national interest since the Trinidad-based company was unable to meet the demand from Guyana and the rest of the Caribbean.

“The issue of the CET on cement found itself on many occasions in the media and is something that is very very important to us to be sorted out… it would call for cooperation and collaboration with other member states as well and we are hoping we would be able to have a reasonable agreement in this regard,” Rodrigues explained.

TCL had moved to the Caribbean Court of Justice (CCJ) against Guyana and the CARICOM secretariat claiming that the removal of CET on cement from outside the region was illegal.

The Court ruled in favour of the company last year and instructed Guyana to reinstate the tariff. Guyana has abided by the ruling but will contest the decision.

Commentary: More countries showing interest in joining CCJ
Source: Caribbean Net News

By Oscar Ramjeet
Published on Wednesday, December 9, 2009

It is more than four and a half years since the Caribbean Court of Justice (CCJ) was inaugurated and, so far, no other jurisdiction has joined Guyana and Barbados in accepting the CCJ as the final appellate court.

I read with great interest a statement made by St Lucia Oppositon leader, Kenny Anthony, calling for a region wide simultantous move to join the regional court.

He added that he does not believe that any government should go into amending their particular constitution to facilitate accesssion without securing the agreement of the opposition.

I wonder why when politicians are in the opposition they call on government to take action and when they are in power, they do not comply. Anthony was prime minister when the Court was inaugurated in April 2005. In fact he was present at the lavish ceremony in Port of Spain, and he was in government for 20 long months and he failed to set in motion for his country to remove the Privy Council as the final Court and replace it with the CCJ.

Now he is out of government, he wants co-operation between the government and opposition to join the regional court. This a good move on his part, but he should have done so when he was in government.

There are several factors why some countries are/were reluctant to join the regional court. Jamaica for instance, which was in the forefront in the establishment of the Court, lost interest. Former Attorney General Dr Oswald Harding, who is the current President of the Court of Appeal. who was the main advocate for the court in the late 1980s and early 1990s, said that, although Jamaica is contributing 27% towards the operation of the court, no Jamaican has been appointed as judge, although seven senior well qualified lawyers had applied for the position, and they were all by passed for persons who were less qualified.

He added also the former Prime Minister P.J. Patterson tried to railroad Jamaica's entry and failed to carry out the correct legal procedure to remove the Privy Council as the final Court, which was later struck down by the London-based final court.

The rejection by the electorate in St Vincent and the Grenadines of the November 25 referendum should not be used as a yardstick in the region to measure the thinking of the people whether or not to accept the CCJ as the final Court. I think there were other factors why that referendum failed.

Antigua and Barbuda Attorney General, Justin Simon, made the point that the results of the St Vincent rederendum should not deter other jurisdictions from seeking constitutional changes to accommodate the regional Court.

Belize will soon join the regional court. Jamaica has reconsidered its position and will soon put the mechanism in place to do so and a few OECS states including Grenada, Antigua, and St Lucia are also willing.

Trinidad and Tobago, which spearded the establishment of the Court along with Jamaica, will take some time before it comes on board. The reason being that it must first secure the approval of the Opposition, and Basdeo Panday's UNC is not interested... at least not for now.

Lets hope by the end of next year at least three other jurisdictions will be on board.

The notion we can govern - but not judge - ourselves is illogical!

Source: The Tribune

Published On:Monday, September 28, 2009

By Adrian Gibson

LAST week's comments by the President of the UK's new Supreme Court, Lord Nicholas Phillips, sent shockwaves throughout the Commonwealth as this prominent justice claimed that cases from places such as The Bahamas are burdensome and have occupied too much of the time and resources of the Judicial Committee of the Privy Council (JCPC).

In the case of The Bahamas, which continues to retain the Privy Council, Lord Phillips' comments must have shocked the judiciary/government as this leading British jurist seems to be clearly urging countries to develop final courts of appeal or join regional networks since the London-based JCPC may no longer hear appeals from foreign jurisdictions.

In April 2005, the Caribbean Court of Justice (CCJ) was established as a final appellate court for jurisdictions within the region; however, although The Bahamas helps to fund the CCJ, like several other countries, it does not retain this court as its final court of appeal. Frankly, in the interim, until we settle upon our very own final court, it is in the Bahamas' best interest to continue to retain the Privy Council.

At present, there is no comity among the countries that helped launch the CCJ and were privy to the agreement for its establishment. Thus far, these countries have shown a lack of political will towards taking a unified approach to making the necessary Constitutional/legislative adjustments to give the court the validity it needs to operate as the final appellate court in their respective jurisdictions. At present, the jurisdiction of the Privy Council is limited and focused on certain legal areas. If we are truly seeking to establish our sovereignty, why go from what is perceived in some quarters as a form of imperialism or hegemony to another?

Today, the CCJ is the final appellate court for Barbados and Guyana, the latter having abolished the JCPC as its final court several years before the establishment of the CCJ.

Apex

The Privy Council stands at the apex of our local judicial system and, amidst some controversy, has effectively adjudicated on Bahamian, and Caribbean, issues that have come before it. Contrary to a perception that has arisen relative to the CCJ, the Privy Council appears to be a truly independent body that is not subject to judicial meddling, social forces and/or political pressures. In recent times, in an attempt to familiarize itself with local circumstances, the Privy Council has had repeated sittings in the Bahamas.

The Bahamas' Constitution makes provisions for the Privy Council, stating its purpose as being "for the hearing and determination of appeals from decisions of any court in the Bahamas by a panel of judges." The JCPC is a safety net that has protected the rights of citizens in matters where trials were seemingly inequitable and/or set a poor or disagreeable precedent.

Recent Privy Council decisions, particularly regarding death row inmates and their execution, have been loathed and have led to condemnation of the council and calls for its abolition as a final appeals court. Today, many Bahamians view the Privy Council as an obstacle to hanging death row inmates in this era of rampant violent crime.

In 1993, in their infamous Pratt and Morgan decision, the Privy Council decided that the execution of a person after five years on death row amounted to inhumane treatment. Locally, this meant that many prisoners on death row at that time had their sentences converted to life imprisonment. Moreover, latest hullabaloo came after the Lambert Wilson case, which called for the discretionary use of the death penalty and stated that the mandatory death sentence was unconstitutional.

In these times, where organized and sadistic criminals are openly challenging the authority of the state, the Privy Council has been subject to harsh criticism, particularly because certain decisions do not reflect the local circumstances of countries still referring to it.

Noted jurists, such as Justice A Saunders of the Caribbean Court of Justice, have criticized the JCPC on the basis of its perceived hindrance to the development of indigenous jurisprudence, saying:

"Unquestionably, the existence of a right of appeal to the Judicial Committee of the Privy Council affects the confidence of our Courts. At times, our Courts appear to be always looking over their shoulders across the vast ocean of sea towards the Privy Council for applause and approbation.

"This subjugation or subservience of judicial thought and independence cannot be justified in independent and sovereign states."

While the Constitution must be amended to accommodate our own final court, and while Justice Saunders' view holds true in some respects, it is no reason to join the CCJ. Frankly, at present, the funding of the CCJ poses a problem for that regional high court as it is quite costly, this being of particular note during these economically gloomy times. By contrast, the Privy Council is relatively cheap and all the countries using this appellate court share costs.

Furthermore, if more countries--including the Bahamas--were to adopt the CCJ as its final appellate court, will the judges be chosen on merit or quota? And if so, would this leave some jurisdictions out?

In his book, 'An introduction to law and legal systems of the Commonwealth of the Bahamas", Dr Dexter Johnson asserts that:

"The Privy Council does not compromise our sovereignty in the manner that a regional court might do since the latter comes with the shadow of a political union hanging over it. The regionalists in the Bahamas might wish to merge us into a regional, political and economic entity which would be subject to the central final court of this political unit, the Caribbean Court of Justice. Regional and local politics would dictate the appointments to this court."

Before joining the CCJ, Guyana had already established a precedent by using its Court of Appeal as its final court. Like New Zealand (2003), Grenada and Guyana, it is expected that in the Bahamas there will be an eventual abolition of appeals to an overseer court, in this instance, the Privy Council.

In establishing the present Court of Appeal (COA), the Bahamas' constitution states that "there shall be a Court of Appeal for the Bahamas which shall have such jurisdiction and powers as may be conferred upon it by this constitution or any other law." In order to establish the COA as our final appellate body, the scope of the court must be broadened, even though it is presently the final local court on issues that may fall outside of the jurisdictional purview of the JCPC.

The Bahamas needs to change its approach to jurisprudence, as lower court magistrates should be elected and the use of a local final appellate court should foster greater interpretation of the law in a manner suitable to the people.

However, while an indigenous appellate court is desirable, especially as it is also familiar with local lifestyles/customs, our population size may hamper its establishment as questions will arise about the possibility of a fair trial, the threat that a judge could be openly partisan to someone coming before him/her, politically biased, incompetent and/or crooked.

All must be done to ensure that this court is insulated and that these pitfalls must be avoided. Moreover, there is a need for an independent legal commission!

Bahamian court decisions have in the past been praised by Privy Council jurists for being erudite and correct.

Our eventual delinking with the Privy Council will signal our thrust towards building a nation without limitations, signal a move towards real constitutional reform and enhance judicial creativity.

The notion that we can govern ourselves but are not capable of judging ourselves is a non sequitur that is simply illogical!

Bahamians are so emotive and ecstatic about our independence and sovereignty-- particularly around July 10 every year when throngs of Bahamians are brandishing flags, shirts and other related paraphernalia--but the reality is that unless we engage in major constitutional reform and seriously modify our legal system, our sovereignty in some respects is merely theoretical.

The relevance of the law in local circumstances is best achieved by locals, not by regional or far distant courts whose Law Lords' thinking is not superior to that of the most ethical and scrupulous Bahamian jurists.

CCJ's integrity in cement saga

BY Rickey Singh

Source: Trinidad and Tobago Express

Published: Wednesday, October 21, 2009

SINCE the Caribbean Court of Justice (CCJ) dismissed the case brought against the Caribbean Community by Trinidad Cement Ltd (TCL) in connection with the application of Caricom’s Common External Tariff (CET) on cement imports in August there have been a few developments of significance.

The court had ruled that while there was a ’procedural flaw’’ in the authorisation by the community’s Secretary General and its Council for Trade and Economic Development (COTED) to suspend the tariff to facilitate cement imports by Jamaica in 2008 from sources other than TCL, it could not find a basis for treating Caricom’s decision as illegal.

COTED, meeting in Barbados earlier this month, considered a set of proposals presented by Caricom’s Secretary General, arising from the court’s observations about guidance when decisions are to be made by ministerial councils.

However, within six weeks of its ruling in favour of Caricom, the CCJ, which serves as a final appellate institution for some community states, and with original jurisdiction for all participating countries in the settlement of trade disputes, was to authorise the Guyana government to reimpose, within 28 days, the CET on cement imported from non-Caricom countries-an action the country had taken some years ago.

TCL, as a regionally-based company, had applied to the CCJ for such an order, contending that since it has the capacity to satisfy the cement needs of Guyana, there was no justification for the government in Georgetown to suspend the CET to permit cement imports from other sources.

The time for implementation of the court’s order expired on September 17 while the Guyana Government-which has been claiming unreliability on TCL’s part to satisfy competitively its cement requirements, was manoeuvring for an extension of time which it formally sought on September 23.

The CCJ set October 14 for the parties concerned to be engaged by telephone on Guyana’s extension application. But eight days prior to the scheduled hearing via telephone, TCL filed an application with the CCJ to hold Guyana’s attorney general in contempt of court for failing to implement the CET as the court had ruled.

Four days later, on October 12, TCL filed a response opposing the court granting an extension of time to Guyana to reimpose the CET.

By October 15, faced with what head of the presidential secretariat Dr Roger Luncheon, described as its dwindling options, the Guyana government announced that it would abide by the CCJ’s ruling on reimposition of the CET on cement imports from non-Caricom sources.

That decision was to take effect even as this column was being written. However, the case of contempt filed by TCL remains in force and Guyana’s attorney general said that they would respond to the application filed.

Questioned about whether TCL’s contempt application was of more than academic interest in view of Guyana’s decision to abide by the substantial ruling to reimpose the CET, two well known legal luminaries, who prefer not to be identified, said that while the case may still go forward, mitigating factors could be expected to surface.

However, it was doubtful, as one of the legal experts surmised, that TCL may wish to exercise the option of withdrawing its contempt of court application, given the bitter verbal exchanges in the media by both sides.

Those exchanges reached a very troubling stage when the President of Guyana, Bharrat Jagdeo, alluded to a recent meeting of Caricom Heads of Government at which the issue of a conflict of interest was raised. It centred around TCL’s chief executive officer, Rollin Bertrand, who also serves as chairman of the CCJ’s Trust Fund while being actively involved in litigation before the regional court.

TCL’s board had a sharp rebuttal in defence of the integrity of its CEO. Whatever the nature of the concerns, as alluded to by President Jagdeo, no conflict of interest has been established.

Now, therefore, while we await the outcome of the contempt of court matter, the question arises as to whether both parties-Guyana Government and TCL-will consider moving towards a healing process rather than maintain a hostile relationship.

In all of the scenarios that have emerged, what certainly stands out is the independence and integrity of the CCJ.

Little wonder that even those political parties and lawyers who still nurture reservations about the CCJ in preference to the Privy Council are now shifting to the reality that with the judges of the Privy Council anxious to part company with this region, all should come aboard this still-fledgling regional court.

LESSONS FROM SAINT VINCENT FOR JAMAICA

by CLAUDE ROBINSON

Source: Jamaica Observer

Published: Sunday, November 29, 2009

Queen Elizabeth II arrived in Trinidad and Tobago last Thursday for the Commonwealth Heads of Government Meeting to what must be good news for the monarchy: The people of St Vincent and the Grenadines had voted decisively in a referendum to retain her as their Queen and head of state.

The "No" vote of 55.64 per cent was a huge rebuff for Prime Minister Ralph Gonsalves who may have timed the vote to coincide with the Queen's presence in the Caribbean, hoping that an affirmative "Yes" would have been a triumphal way to say goodbye to a powerful symbol of British colonial rule.

While the referendum results are of primary interest to the people of St Vincent and the Grenadines, it is also significant for other regional countries, especially Jamaica where political administrations have wrestled with the same constitutional question the Vincentians have just settled.

A yes vote would have allowed St Vincent and the Grenadines to join Trinidad and Tobago, Dominica and Guyana as the only Caribbean Community (Caricom) countries to sever constitutional ties with Buckingham Palace and select their head of state from among their own people.

Guyana has an executive president, which makes Bharrat Jagdeo head of state and head of government; while Dominica and Trinidad and Tobago have 'ceremonial' presidents with effective power remaining in the hands of the prime minister.

Since the 1970s Jamaica has been engaged in a tortuous constitutional reform process, including breaking ties with the Queen as head of state and establishing a republic similar to Trinidad's. However, the issue has never been put to the people as successive administrations remain spooked by the 1961 referendum against West Indian federation promoted by Norman Manley and the People's National Party (PNP) and opposed by Alexander Bustamante and the Jamaica Labour Party (JLP).

One of the questions arising from last Wednesday's referendum result is the extent to which Caribbean people wish to retain links to British symbols. Or was it simply a statement on the stewardship of Prime Minister Gonsalves?

The referendum would have replaced the St Vincent constitution in force since independence in 1979. The "No" vote of 55.64 per cent was well short of the required two-thirds threshold.

How could Prime Minister Gonsalves have got it so wrong? What happened since the last general election in 2005 in which he and his Unity Labour Party (ULP) got 55.26 per cent of the vote and 12 of the 15 seats in Parliament?

In the campaign leading up to the vote, the prime minister stressed that although he had nothing personally against Queen Elizabeth II, it was time for Saint Vincent to stop having a monarch as its head of state: "I find it a bit of a Nancy story that the Queen of England can really be the Queen of Saint Vincent and the Grenadines."

According to some St Vincent watchers, the referendum result may be a reflection of some unease among voters for the prime minister's reputed affinity towards executive presidents Hugo Chávez of Venezuela and former Cuban leader Fidel Castro.

However, that view was contradicted by the campaign rhetoric in which Mr Gonsalves asserted that the proposed constitution for Saint Vincent and the Grenadines would not have created an executive president because that would give the office holder too much power in the small country, he said in an interview reported in the Trinidad Express.

On the other hand, the Opposition New Democratic Party (NDP) advocated for a "No" vote on the proposals, disputing Mr Gonsalves' assertion that a "Yes" would reduce the power of the prime minister, increase the power of the Opposition and strengthen the country's democracy.

Lessons for Mr Golding

What lessons can Prime Minister Bruce Golding draw from the outcome in St Vincent as he contemplates the idea of a referendum to determine whether Jamaica should adopt the Caribbean Court of Justice (CCJ) as the country's final court of appeal, replacing the British Privy Council?

As it stands, Jamaica can adopt the CCJ as its final court of appeal without a referendum, according to expert opinion. However, in order to entrench the court in the Jamaican constitution the people of Jamaica must agree in a referendum. The argument is that because the Privy Council is now entrenched in the constitution, any court that replaces it would also have to be entrenched.

While I support the CCJ as our final appeal court, I also believe that this matter must be put to a referendum, given divided opinion on the issue.

These divisions may have been sharpened last week by the Privy Council ruling in favour of Mr Ezroy Millwood and the National Transportation Cooperative Society. Some will view the judgement as justice, finally, for the beleaguered franchise, while others may regard it as an imposition by 'foreign' judges that will cost taxpayers some $1.85 billion.

Of course, one way of securing a predicted outcome in a referendum is where the two parties - governing and opposition - agree on the matter to be decided and neither would seek to take advantage of the other. But even here the outcome may not be assured.

Speaking with Beverley Manley on Hot 102 the day after the losing the vote in St Vincent, Mr Gonsalves indicated that the two parties had earlier agreed to support the "Yes" vote. His clear implication was that the opposition had backtracked.

News out of St Vincent offered an explanation for the change of heart: NDP leader Arnhim Eustace opined that the two sides had failed to reach an agreement on a number of fundamental issues, including the Integrity Commission, the Human Rights Commission, the ombudsman, and the Electoral and Boundaries Commission.

In other words, the opposition appeared to have tied its support for a "Yes" vote to other issues of human rights and accountability, which it considered important. Or they may have smelled that the government was politically vulnerable.

Thus, another lesson is that a referendum is not always about the specific item on the ballot paper and can easily become a statement on the performance of the government. Simply put, referenda are fraught with political danger.

In the context of the current economic challenges faced by all governments in the region, voters are concerned about the ability of incumbents to increase opportunity, improve living standards and maintain social peace. Opposition parties are sniffing power.

Finally, it may also be that a majority of voters want to retain their connection and find no problem with an anachronism of a governor general as the Queen's representative in Jamaica instead of being a symbol of the Jamaican people.

It is also significant that the vote came as the 53-member grouping of Britain and its former colonies spread across the globe was meeting in Port of Spain trying to find relevance in the new balance of power in the world.

In these circumstances, Mr Golding is unlikely to test the waters about entrenching the CCJ any time soon. On the larger issue of changing the Jamaican constitution to have a president as the Jamaican head of state, we can, in the famous words of former prime minister PJ Patterson, 'forget it'.

Commentary: Cultivating intellectual property rights, responsibilities and respect in the Caribbean
SOURCE: CARIBBEAN NET NEWS Published on Wednesday, November 18, 2009
By Abiola Inniss

On October 28, 2009, this writer, upon browsing the Kaieteur News of Guyana, was left open-mouthed in astonishment at finding on page 9 of the newspaper, a big bold copy of my last article published on October 27, 2009, by Caribbean Net News entitled ‘Restorative justice: a farfetched idea for the Caribbean?

While the reader may at first think it something of an honour, I was astounded to discover that the title had been changed to read “Region may need restorative justice” and that the article was attributed to some place on the world wide web named Hoovers (readers may find a scanned copy of the infringing page here).

At no point was my authorship acknowledged nor was the source from which the article was derived, namely,Caribbean Net News. Being Guyanese, I felt especially wounded at such blatant disrespect and dishonesty as the reward for honest effort and some input of scholarship, and while it is said that life holds few surprises for the wary, the sting of theft is no less painful for the knowledge of the thief and this act in fact places the Kaieteur News in the very bracket of corruption which it claims to highlight in its offerings.

Two other national newspapers in particular, the Stabroek News and the Guyana Chronicle added their tacit consent to this illegality by refusing to publish my letters of complaint on the issue.

Artists, producers, inventors, writers, artistes and all who labour in mind to originate works which add to the general store of knowledge in diverse forms ,are the creators of intellectual property and are therefore entitled to protection of the intellectual property laws, provided of course that such laws exist.

Across the Caribbean region there are varying degrees of interest and effort in the preservation of the rights of originators of works, but there is as yet no concrete regional approach. In addition it has become the cultural norm in most countries of the region to treat IP rights with scant regard so long as it may be done with impunity; the reasons for this range from ignorance that such rights actually exist, to opportunism of varying degrees.

Grenada is to be commended for their efforts and intentions at public awareness and for attempts to offer greater legal protection while Jamaica is perhaps the leader in enforcement of IP rights. Guyana is yet to craft a programme which will incorporate relevant legislation, enforcement, education, and an equitable balance between the need to earn a living and fair access to IP resources.

It is needless to say that the current laws are woefully inadequate, unacceptable and do not for most part incorporate the standards of the conventions on IP to which Guyana is a signatory. Unless it is specifically intended by its construction to become law in signatory territories upon ratification (self executing), any regulations coming from a signed convention must be enacted by the legislature of that country in order to become law.

In short, countries may elect to sign on to conventions but not to enact the provisions as long as there are no penalties attached (very rare) or may choose to find ways of delaying the enactment and implementation of the conditions and avoiding the penalties. This has arguably been the case in some countries which have felt constrained to sign on to conventions with particular regard to IP rights.

It is a fact that most Caribbean countries are members of the World Trade Organization which has made it compulsory for all members to sign on to The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). This means that all Caribbean countries, which are members of the WTO, are required to enact the minimum requirements on IP rights as set out by this agreement in order to participate fully in the WTO system. The agreement has been continuously criticised by many developing countries as giving especial advantage to developed countries which are huge producers of goods which are subject to these rights (see Jagdish Bhagwati (2004), In Defense of Globalization, Oxford University Press).

In the absence of any other comprehensive arrangement and in the face of the growing problems in IP, Caribbean countries need to take some very specific steps deal with their issues.

While Caribbean countries may be signatories to the WTO and TRIPS, CARICOM itself ought to create legal and regulatory framework which will deal with the regional requirements of IP rights. This need not conflict with the minimum requirements for TRIPS and will in fact aid in the development of a regional understanding resolution and development of the issues and benefits.

There are in my opinion three important stages in creating a comprehensive working system for the region:

Firstly there must be the implementation of legal and regulatory framework. In simple terms, the Caribbean Court of Justice ought to be given jurisdiction as a court of first instance on IP matters, which jurisdiction will extend through two other levels of appeals. This will ensure that Caribbean citizens have adequate redress for the infringement of rights. The use of alternative dispute resolution as required by TRIPS is also key, since there are some aspects of IP law which are more suited to this method of resolution than the court system. It would therefore mean that a regional Alternative Dispute Resolution Board must be established to deal with the mediation and arbitration of these issues.

Secondly, there must be enforcement of decisions coming from the CCJ and the ADR Board. In the case of the CCJ, signatory countries already have mechanisms in place to deal with this. The same will have to be done for the ADR Board, though this would only apply to arbitration.

And finally there must be a regional approach to educating our citizens on the issues, building awareness and respect in much the same manner and with the same amount of effort expended on HIV/ AIDS and the CSME for example.

The Caribbean Community must make use of its viable human resource network in order to make a difference for the better in the way our society functions. In order for the law and the society to coexist equably and effectively, there must be a balance of the interests. There is also the requirement of honesty and integrity by citizens, whether corporate or individual. In the case of the Kaieteur News mentioned above, the reader will be the judge.