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 

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.

Wickham: Time to join CCJ

SOURCE: NATION NEWS - BARBADOS

PUBLISHED: TUE, JANUARY 08, 2013

It is time that Jamaica and Trinidad and Tobago fully sign on to the Caribbean Court of Justice (CCJ) as their final court of appeal.

This is coming from political scientist Peter Wickham, who thinks that both countries have a moral duty to accept the court.

Asked if those countries’ positions could demoralize the spirit of regional integration, especially now that Jamaica was using the court’s original jurisdiction to litigate the case of Shanique Myrie, one of its citizens, Wickham said: “I agree with you that the litigation is adding value to the argument that Jamaica and Trinidad and Tobago ought to be part of the CCJ.

“The important thing to understand though is that the Myrie litigation is taking place under a component of the CCJ that both Jamaica and Trinidad are already signed on to. So we have to understand that they are in conformity with the aspects of the CCJ that is logical for the action that they are taking.” (JS)

At the root of Caribbean disunity

by CLAUDE ROBINSON

Published by the Jamaica Observer

Sunday, April 03, 2011

UNLESS you have been too focused on the unseemly brawl between attorney KD Knight and Prime Minister Bruce Golding at the Dudus/Manatt enquiry you know that there has been sustained national outcry since Shanique Myrie revealed to this newspaper that she was the victim of an alleged cavity search that felt like a sexual assault by a female immigration official in Barbados.

The incident reportedly occurred on March 14. She also said the Immigration officer made several derogatory remarks about Jamaicans. She was refused permission to land and was returned to Jamaica on the next available flight.

SAMUDA… it makes no sense for Caribbean countries to accept and indeed to court investors from all over the world, but to resent those who take up such offers who come from elsewhere within the region

SAMUDA… it makes no sense for Caribbean countries to accept and indeed to court investors from all over the world, but to resent those who take up such offers who come from elsewhere within the region 1/1

Barbadian Foreign Affairs Minister Senator Maxine McClean immediately dismissed Ms Myrie's allegations.

"There is absolutely no truth to a story carried in a Jamaican newspaper on Thursday, March 24, that a female citizen of that country was body-searched by Immigration officers on arrival at the Grantley Adams International Airport." The minister accepted a report from the chief immigration officer, after "extensive investigations" that "the claims were baseless".

By Thursday, as the controversy got extensive media and political attention across the region, the Jamaican Government despatched a team of officials to Barbados to dig deeper into the issue.

Meanwhile, the Barbadian minister appeared to be dialling back her initial assertions, suggesting that the matter must be thoroughly and calmly investigated to determine what really happened and what sanctions would be applied to anyone found to be have committed an illegal offence.

What we know at this stage is that the story told by Ms Myrie to the Observer and the story told by Barbadian Immigration officials to the foreign minister cannot both be true.

Though I am prepared to suspend final judgement until all the facts are in, it is not credible for Ms Myrie to concoct such a horrifying and humiliating story about herself. It is not the kind of notoriety that any rational person would inflict on themselves.

The specific issue is not beyond reasonable resolution. The allegations outlined by Ms Myrie are illegal under Barbadian law and I do not believe it's beyond the Royal Barbados Police to get to the truth and let the law take its course. The Jamaican woman has, quite rightly, retained counsel to protect her interests and her human rights.

But as the investigation runs its course, the controversy has again raised fundamental questions about commitment to the regional integration movement which generations of political leaders have been crafting, with limited success, for more than four decades.

Reflection of deep suspicions and mistrust

Was this an isolated incident or a reflection of deeper rifts and mistrust about the practical implementation of the various protocols and agreements about the free movement of people, capital, and goods and services?

We know that Caricom suffers from periodic skirmishes ranging from trade -- the struggle to get Jamaican patties into Trinidad is a case in point — through the upkeep and utilisation of the Caribbean Court of Justice, to immigration, as proved by the Myrie case, and recitations of story after story about mistreatment in Barbados and Trinidad and Tobago of nationals from several Caricom countries.

Addressing Parliament last Wednesday, Prime Minister Golding said the most recent Caricom heads of Government meeting heard complaints from the St Vincent prime minister that nationals from his country were mistreated when they arrived in Barbados. At a meeting prior to that, a similar complaint was made by the president of Guyana.

"There are issues that we have not addressed. The deputy prime minister will confirm that at almost every Heads of Government meeting the matter is raised," Mr Golding remarked in his statement to Parliament.

In its editorial comment on the issue Thursday, The Trinidad Express acknowledged that the twin-island republic has also been fingered in the mistreatment of Jamaicans, stating that, "Jamaica has also listed this country's airports among those in the region where its citizens have charged mistreatment by officials. This is in spite of the fact that Caricom purports to be moving towards free travel between member states."

The so-called Caricom passport is honoured more in the breach than the observance and persons in possession of valid Caricom skill certificates, which identify the holder as persons eligible to move freely throughout the region, say the document is routinely ignored by border officials.

In some instances, Immigration officials do not have the authority to honour these documents because their governments did not bother to pass the necessary enabling legislation that would give the power of law to the signed agreements.

Another underlying issue is the differences in economic development. People in Trinidad and Tobago and Barbados, the two Caricom members with the most robust economies, often express concerns about 'foreigners' coming in to 'take' what rightly belongs to 'nationals'. Border officials probably reflect this mood when they encounter some Caricom nationals at points of entry.

In addition, the gap between what regional treaties say and what occurs in national practice is explained by the fact that there is no supra-national body to enforce the agreements because individual states and people have shown no inclination to give up their sovereignty, not even in part.

This is not an easy issue because no country will give up its right to make critical decisions about matters like security, border control and development strategy unless the alternative is demonstrably better than holding on to the illusion of sovereignty.

The European Union is often dangled as an example of a regional integration movement that works; but this did not happen overnight. And they still have holdouts. For example, the British have stayed out of the common Euro currency, holding on to the pound as their national currency.

In our region the benefits of integration have been slow in coming. Big inter-regional projects tend to falter. A case in point: Early in the 1970s, Jamaica's Michael Manley, Guyana's Forbes Burnham and Trinidad and Tobago's Eric Williams talked boldly and hopefully about a regional aluminium smelter using alumina from Jamaica and Guyana and energy from Trinidad. Nothing happened.

But while state-supported projects have faltered, business people at all levels are up and down the region investing and working even in the face of bureaucratic humbug. Big firms like GraceKennedy, Sagicor, and Trinidad Cement are all over the place.

This past week Karl Samuda, minister of industry, investment and commerce, was in Trinidad and Tobago wooing investors.

According to The Trinidad Express, Samuda said that "it makes no sense for Caribbean countries to accept and indeed to court investors from all over the world, but to resent those who take up such offers who come from elsewhere within the region".

At another end of the spectrum, Jamaican entertainers pull big crowds even in places where authorities show their disapproval of some of the lyrical content and on-stage profanities. And some don't get past the border.

It seems, therefore, that there is a real desire for mutually beneficial exchanges at both corporate and individual levels. But this has to be done in a context of mutual respect.

Skirmishes and squabbles are part of doing business; abuse and humiliation are not. For the most part the region is joined by commonalities of culture, language and the Caribbean Sea. The divisiveness that too often prevails over co-operation will, in all probability, disappear with time and force of circumstances. We may become more accommodating to one another as others far away become less accommodating to us.

Source: http://www.jamaicaobserver.com/pfversion/At-the-root-of-Caribbean-disunity_8617864#ixzz1IVvEOQxS

Dancing away from the CCJ

Dancing away from the CCJ

Ex-St Lucia PM sees 'bleak future' for Caricom

Source: Jamaica Observer

Published: December 29, 2010

APPREHENSION over future leadership at the Georgetown-based Caribbean Community Secretariat has now grown to include the future of the Port-of-Spain-headquartered Caribbean Court of Justice (CCJ).

In the case of the latter, current talk in Jamaica and Trinidad and Tobago to dance away from accessing the CCJ in preference for establishing their own final appeal court has drawn a sharp rebuke from Dr Kenny Anthony, a former prime minister of St Lucia. He had played a key role in the formation of the CCJ when he headed the legal division of the Community Secretariat.

There will, therefore, be no formal handing over by the retired Carrington to his successor when Caricom leaders hold their scheduled first Inter-Sessional Meeting for 2011 in Grenada in February,With the surprise decision by Edwin Carrington to step down as Caricom secretary general at the end of this month after 18 years of service, Deputy Secretary General Lolila Applewaithe will begin acting as secretary general from January 1.

A new six-month chairmanship also begins next month when host for the coming Inter-Sessional Meeting in St George's, Prime Minister Tillman Thomas takes over from his Jamaican counterpart, Bruce Golding.

While he has been quite forthcoming in articulating Caricom's support for Haiti and speaking reassuringly about regional economic integration, it is Prime Minister Golding who, within recent weeks, has further contributed to deep concerns over the future of the CCJ.

As if seeking political cover under an idea initially raised in Trinidad and Tobago -- but yet to be advocated as official policy -- Prime Minister Golding is marketing an initiative for Jamaica to replace the Privy Council in London with its own final court of appeal.

With no known appetite for the CCJ, Golding and his Jamaica Labour Party (under earlier leadership as well), have long been ducking the challenge of accessing the regional court by linking such a move with the need for a national referendum

Read that proposition to mean, basically, more faith in the competence and integrity in the British law lords of the Privy Council than the fine legal minds this region has produced across member states, and with arduous efforts to ensure appointments free from the political influences so often talked about with respect to the functioning of local judiciaries.

The situation becomes even more intriguing when it is understood that a national referendum to replace the Privy Council is not really a necessity in the case of Jamaica, as it is in countries of the Organisation of Eastern Caribbean States.

Further, various British law lords associated with the Privy Council have been urging former British colonies, like ours in Caricom, to initiate arrangements to break the dependency syndrome on the Privy Council.

How sad, in contrast, to hear Caricom leaders like Golding and his Trinidadian counterpart, Prime Minister Kamla Persad-Bissessar, talking about replacing the Privy Council with their respective final appeal court.

At the same time, they steadfastly avoid encouragement to access the CCJ -- as Barbados, Guyana and Belize have done -- with a court of original jurisdiction in resolving trade disputes as well as serving as the final appellate institution of the entire community.

In St, Lucia, Dr Anthony's expression of "surprise and bewilderment" came in his response to the emerging tactics, both in Jamaica and Trinidad and Tobago, to push the idea of a final national court of appeal without any commitment to the CCJ.

Anthony, known for his robust advocacy of development of a West Indian jurisprudence, believes that if Jamaica and Trinidad and Tobago persist in spreading the notion of individual final appeal courts it would strike a "lethal blow" to the furthering of any support for the CCJ.

He is bewildered by what he views as a "disingenuous" contention to avoid political influence in the case of the CCJ. If indeed, said Anthony, the CCJ "is susceptible to political influence -- as is being claimed in Jamaica, for instance, then how much more could a Jamaican (or T&T) final appeal court be affected by political manipulations?"

The prospect, therefore, as he lamented, for realising the full benefits of creating a Caribbean Community, as envisaged by the Revised Treaty of Chaguaramas, "is becoming bleaker and bleaker if we cannot be committed to so compelling a case for region-wide endorsement of the CCJ.

Read more: http://www.jamaicaobserver.com/news/Dancing-away-from-the-CCJ_8258962#ixzz19WcavMHs

Kamla wants to opt out of Carib court

Carib Wise Men urge Kamla to go easy on CCJ

By Bert Wilkinson

Published: Monday, August 30, 2010

Source: Caribbean Life News

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

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

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

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

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

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

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

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

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

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

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

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

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

Rowley renews call to PP Govt:

Replace Privy Council with CCJ

Published: 28 Aug 2010

Source: Trinidad Guardian

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

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

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

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'.

Jamaica and the Caribbean Court of Justice and regional integration

Commentary: Jamaica and the Caribbean Court of Justice and regional integrationPublished on Tuesday, November 24, 2009
By Oscar Ramjeet
Source: Caribbeannetnews.com

Dr Oswald Harding, who was the attorney general of Jamaica when the Caribbean Court of Justice (CCJ) was first touted in the late 1980s and the early 1990s, has explained to me why Jamaica has not yet abolished appeals to the Privy Council and joined the CCJ as the final court.

The former Jamaica Attorney General and his Trinidad and counterpart, Selwyn Richardson, were moving from island to island encouraging governments to join the regional court, but after 20 years these two countries are still to accept the CCJ as the final Court.

Dr Harding, who is now the President of the Senate, in an exclusive interview with me said that the Jamaica Labour Party (JLP) has always been in favour of the regional Court, but said that there were a few distractions in the 1990s: Richardson was murdered and the JLP lost the government among others.

He explained that the Peoples National Party government under P.J. Patterson then started to railroad activities in a move to remove the Privy Council as the final court by passing legislation without consulting the JLP, which was later struck down by the London-based Privy Council.

He added that the Jamaican government is contributing 27% of the costs to run and administer the Court and has not been getting any benefit whatsoever since it has not joined the Appellate Division because the Privy Council is still the final Court and he referred to the attitude of the CCJ Judges.

The Senior Counsel said that he is not happy with the composition of the Court and pointed out that seven highly qualified and experienced Jamaican lawyers had applied for a position in the Court, but they were all turned down in favour of less experienced candidates.

Touching on talks and discussions about Caribbean integration, the President of the Senate referred to a publication "integrate or perish". He said that there is too much talk and less action in this regard and referred to the stand taken by some regional governments on the question of freedom of movement.

He said that some governments change the goal post when it is convenient to them and there must be a change of attitude.

Meanwhile, Jamaican Attorney General, Dorothy Lightbourne, indicated to me that her country is about to take steps to remove the Privy Council as the final Court, and Belize Prime Minister Dean Barrow has already tabled a Motion in Parliament to amend the Constitution to facilitate the CCJ as the final Court.

In fact the Belize Government, although there is no need for a referendum to effect the change, has launched public aware consultations throughout the country to sensitise constituents on the proposed constitutional changes.

A few other countries, including Grenada, St Lucia and St Vincent and the Grenadines, have signalled their interest in joining the regional Appellate Court as well.

The Trinidad and Tobago Government is willing to go on board, but before it can do so it has to get the sanction of the Opposition since it requires two thirds majority in order to secure the amendment.

Only two countries, Guyana and Barbados, are members of the Appellate Jurisdiction of the Court, which was established more than four years ago.

EXPERTS EXAMINE DEVELOPMENTS IN CARIBBEAN LAW

Source: CMC

Wednesday, November 11, 2009

PORT OF SPAIN, Trinidad (CMC) - The prime minister of Barbados told Monday night's opening of a three-day symposium examining developments in Caribbean law that such a forum was necessary to explore the strength and durability of the pillars on which the regional integration movement rests.

"Did we get it right the first time? Or is there room for improvement? And which reforms precisely would be appropriate?" Prime Minister David Thompson asked delegates attending the opening ceremony of the inaugural gathering on "Current Developments in Caribbean Community Law".

Thompson, who has lead responsibility for the Caribbean Community (Caricom) Single Market and Economy (CSME), said that an essential corollary to these issues is the prognosis for the future of the region.

"I am fully cognisant of the dire fate prophesied by some for the Community, perhaps most wittily 'CARI-COM(E); CARI-GONE'. However, I believe, similar to Mark Twain's description of rumours of his death, that these predictions of doom are 'grossly exaggerated'," Thompson told the opening ceremony.

The Barbados prime minister said that he has often stated that sporadic disagreements among member states of a community "do not equate to disunity, but rather, differences of opinion on how best to achieve such unity.

"Indeed, no member state has so far dissented from the view that we should embrace regional unity and this convergence, in my views, is the core of the matter," he said, noting that the issue would form the basis of a topic for discussions among the legal luminaries who "will no doubt treat this issue in far greater depth than I could ever hope to do here".

Thompson said that a critical element of a "just and equitable market such as we are minded to achieve" is the existence of fair competition among business enterprises. He said he also welcomed the establishment of the Competition Commission, whose functions include monitoring anti-competitive practices of enterprises operating in the CSME and investigating and arbitrating cross-border disputes.

"In order to more efficiently achieve these objectives, the commission is empowered to, inter alia, order payment of compensation to persons affected by anti-competitive business conduct and to impose fines for breaches of the rules of competition in the Community," he said.

But Thompson said that as a backdrop to the regulations is the spectre of the current global financial and economic crisis, noting that delegates would be discussing the consequences of this recession "on our attempts to forge a viable regional market and economy and the opportunities which it may present for us to take advantage of as a regional grouping".

The event, which brought together legal luminaries from Caricom countries, was organised by the Caribbean Law Institute Centre (CLIC), in association with the Caricom Secretariat and the Caribbean Court of Justice (CCJ).

CCJ President Michael de la Bastide, speaking on developments in judicial protection of fundamental rights in the Commonwealth Caribbean, said he would like to see the award of vindicatory damages so hedged around with rules and restrictions "that its usefulness as a tool for the enforcement of constitutionally protected rights and freedoms would be impaired". CMC

.....................................

I thank my readers for drawing my attention to the errors in the above article and I apologize to the Rt. Hon. Mr. Justice Michael de la Bastide for the oversight.

My readers can be reassured that the full text published on the 21st day of November (http://caribbeancourtofjustice.blogspot.com/2009/11/key-note-address-by-rt.html) has been published with the appropriate permissions.

The correct quotation of the President is below:

The question whether, and if so, how, vindicatory damages are distinguishable from exemplary damages, has provoked a good deal of discussion both by judges and academics. Initially, the tendency was to identify and highlight perceived differences between the two types of damages. For example, the point was made that while exemplary damages are punitive, vindicatory are not. It was also suggested that exemplary damages focus more on the offender while vindicatory damages focus on the right infringed. The differences between them in my view are not all that clear-cut. They are differences more of emphasis than of substance. There is clearly a great deal of overlap between the two. The Privy Council has itself come around to accepting that both forms of damages have a good deal in common. In the recent case of Takitota v The Attorney General[1] ( [2009] UK PC 11) from The Bahamas the Board held that to award both exemplary and vindicatory damages would result in a duplication. In delivering the judgment of the Board Lord Carswell said at paragraph [13]:

“The award of damages for breach of constitutional rights has much the same object as the common law award of exemplary damages”.

[9] My final word on this topic is that I would not like to see the award of vindicatory damages so hedged around with rules and restrictions that its usefulness as a tool for the enforcement of constitutionally protected rights and freedoms, would be impaired.

Better political maturity needed

Posted: Sunday, October 25, 2009

Source: www.trinidadandtobagonews.com

By Derren Joseph

October 25, 2009

For the third week in a row, I continue to explore the debate on constitutional reform. By the time this is published, Dr Ghany's committee would have held two public meetings on constitutional reform. Regarding the case for constitutional reform in the first place, one issue that has jumped out at me is the issue of the Privy Council still being our final court of appeal. As a Trini and as a West Indian, I feel embarrassed as I follow this discussion. On a Caribbean Court of Justice Blog, an article from the "Financial Times" is reproduced "http://caribbeancourtofjustice.blogspot.com". In it, Lord Phillips, President of the new Supreme Court, said he was searching for ways to curb the "disproportionate" time he and his fellow senior justices spent hearing legal appeals from independent Commonwealth countries to the Privy Council in London.

Essentially, the article makes it very clear that it was a "minor public scandal" that judges in the UK's top court spent almost half their time on business "of no interest to anyone in the UK". It goes on to say that "if they didn't spend time in the Privy Council, the justices of the Supreme Court could hear almost twice as many cases coming up from the UK legal system." The article concludes by saying that this is both an "ideological stain and a financial drain on the newly-created Supreme Court". In a nutshell, they do not want us former colonies clogging up their system with our problems. Some argue that we are not yet ready for the Caribbean Court of Justice; others argue that we should effect the constitutional change needed to recognise the CCJ, and that this delay betrays the underlying issue—the immaturity of our politicians. This position holds that we should not just focus on the terms of our constitution, but the maturity and the attitude of the politicians we choose to represent our interests.

In discussing constitutional reform on Facebook, a contributor referenced the US presidential elections of 2000. Al Gore could have maintained his court challenge, but he chose not to do so, "for the sake of our unity as a people and the strength of our democracy." Would that level of maturity have been displayed in a similar situation in Trinidad and Tobago? Or would the court challenge have continued to the detriment of us all? In looking at constitutional reform, there may be some benefit in keeping an eye out for potential occasions where clashes between parties could lead to the system grinding to a halt. One potential scenario would be if we had a US-type presidential system and different parties controlled the legislature and the executive. The Prime Minister drew reference to this "political immaturity" in justifying the proposal in the "Working Paper on Constitution Reform for Public Comment" for having the President being from the party that has a parliamentary majority.

This is something to seriously consider. But such consideration should be guided by the Reservations of Solomon Lutchman in the Report of the Wooding Commission on Constitutional Reform. He notes that "A new constitution, or any new set of clothes, cannot solve the ills of any society, unless there is a fundamental change of attitudes in the people for whom it is designed and the persons who must operate it." Lutchman goes on to say that "no constitution can be better than the society it serves or can work better than is willed by the operators. A constitution should encourage the collective effort of the society and be the vehicle whereby the collective social effort is encouraged and realised, not frustrated and perverted. Even where a constitution is defective, collective social effort and public awareness can modify its operation, and even where it is good, public apathy and perverse practices can frustrate the best political machinery."

Personally, one of my favourite parts is where Lutchman says that "The people are always, in the long run, wiser than their leaders, and the democratic system should provide continuous and succeeding opportunities for the good sense of the people to correct past mistakes and prevail." Perhaps, there is no magical constitution to resolve our issues. Some say, the real magic probably lies in supporting leaders who bring out the best in us and encourage us to be better citizens.