Third Anniversary of the CCJ

The CCJ three years on
RICKEY SINGH, Observer Caribbean correspondent

Wednesday, April 16, 2008

TODAY marks the third anniversary of the Caribbean Court of Justice (CCJ) that was ceremonially inaugurated in Trinidad and Tobago with an inter-faith service on April 16, 2005 to usher in a historic moment for the development of a Caribbean jurisprudence.

It was established to function both as a final appellate institution and with an original jurisdiction for resolution of trade disputes arising from interpretation of the revised Caricom Treaty.

Three years after its inauguration with headquarters in Port of Spain, the CCJ remains the final appeal court of just its first two member states - Guyana and Barbados. It has delivered judgments in a dozen cases between October 2005 and March 2008.

All other partner states of the English-speaking Caribbean, including its home base, Trinidad and Tobago, continue to access the Privy Council in London, consistent with an age-old colonial tradition and with no movement on the political horizon for a change in its membership status quo in the immediate future.

The Barbados-based Caribbean Development Bank (CDB) has, to its list of credits, the successful mobilisation of US$100 million on the international money market for the financing of the CCJ with a carefully crafted repayment scheme by governments of the participating member states.
While all member countries pay their contributions for the operational budget of the CCJ - estimated at approximately US$4.05 million in 2006 - only Barbados and Guyana can rightly access it as their court of last resort, plus its jurisdiction on trade disputes.

The explanation often offered by Caricom governments yet to sever links with the Privy Council is that they may first have to go the route of a national referendum. But constitutional experts have pointed out that while in Jamaica both dominant political parties have, as of last year, now committed themselves to the referendum course to determine replacement of the Privy Council with the CCJ, at least four Eastern Caribbean countries do not necessarily have to do so.

These four, all in the OECS sub-region - St Vincent and the Grenadines, St Lucia, St Kitts and Nevis, and Dominica - have the option to negotiate support for a two-thirds parliamentary majority to access the CCJ as their final appellate court, rather than resorting to a two-track approach to obtain both the required parliamentary majority and going for a national referendum.

None of this quartet of countries has attempted, under different administrations, to educate the public in favour of replacing the Privy Council with the CCJ. Instead, there continues to be the curious scenario of opposition parties often on the offensive to retain the Privy Council, particularly when they disagree with judgements of their own courts.

Focus on Jamaica
On the other hand, governing parties justify the existence of the CCJ, but without pursuing any significant initiative to move the process towards terminating access to the Privy Council and allowing unchallenged claims of their domestic political opponents.

Latest criticisms levelled at the CCJ in Trinidad and Tobago - where passionate debates often take place about the independence and integrity of the local judiciary - came last week from United National Congress parliamentarian, Senator Wade Mark.

Not only did he engage in a verbal assault against the Patrick Manning administration for, as he claimed, being part of the regional governments "wasting" some TT$400 million (US$66.4 million) annually on the CCJ, but thought it necessary to introduce the race factor with his questioning of any West Indian of Indian descent being among the appointed judges.

In plural Caricom societies like Trinidad and Tobago and Guyana, the race factor in high-profile appointments, including the judiciary, has long been a sensitive issue.It is troubling that Senator Mark should raise, at this stage, the race factor when seven distinguished legal luminaries comprise the judges of the court (two more are yet to be appointed), when making his criticisms against poor fiscal management by the Manning administration.

Incidentally, the senator is way off mark in speaking of wastage of $400 million when the total recurrent and capital budget for the CCJ in 2006, as audited, was US$7.2 million (including US$2.7 million in capital expenditure).

At present, ironically, and strange as it may seem to some, hope is being encouraged on Jamaica moving towards the promised referendum on the CCJ as its court of last resort.

The feeling is that once it takes place, the outcome will be positive in favour of terminating access to the Privy Council. Such a development could well inspire other Caricom states to cease being negative about the CCJ and broaden access.

Race and the CCJ

Mark: No Indian judges in CCJ

Source: Trinidad Express
Anna Ramdass : aramdass@trinidadexpress.com
Thursday, April 10th 2008

Opposition Senator Wade Mark has questioned the balance in the ethnic composition of judges appointed to the Caribbean Court of Justice (CCJ).

He made the comment as he told the Senate there are no Indian judges in the CCJ. "There are 1.4 million Indo-Trinidadians in Suriname, in Guyana and in Trinidad and Tobago... they have appointed between six and nine judges to the CCJ, not one single Indian, not one Indian in that balance,'' Mark said in his contribution to the Caribbean Court of Justice (Headquarters) Bill 2008 at Tuesday's Senate sitting at the Red House, Port of Spain.

"And don't tell me that we don't have judges who are prominent and well established in the judicial landscape... even when you look at the composition of the CCJ, it leaves a lot to be desired."

He said he knows people of Indian origin who have applied for the position, and they have received letters indicating that "their applications are under active consideration".

"Tell me where is the justice,'' Mark said, as he argued that Parliament was being used as a tool by the Trinidad and Tobago Government and other regional governments.

He added that United National Congress Alliance (UNC-A) will never support the CCJ, and pointed out that under the legislation, the head of the CCJ, Michael De La Bastide, can be removed from that position with a three-quarter vote of Caricom Heads of Government.

"We have no faith whatsoever in the CCJ. It is a play thing of Caricom Heads of Government and it will never be able to deliver justice," Mark said.

He argued that other Caricom heads also do not have faith in the CCJ and the fact that only two countries-Barbados and Guyana -have lent their support is evidence of this.

Mark added that the people of Trinidad and Tobago were never consulted with respect to the establishment of the CCJ.

"The CCJ is a waste of time, a waste of taxpayers' money," he said.

COMMENTS

Posted: 2008-04-09 10:02:00 PM
Why is Wade given so much press time when he has proven time and again by his senseless arguments how shallow his thinking is? I guess if making a fool of himself keeps him paid, then he will be a fool for life. Tell us another folklore Wade.

Good going Mark
Posted: 2008-04-09 10:03:00 PM
good going Mark and God bless you, thank God this is observation is made by someone of another race. Tell God will not show you His favor for looking at things as you see it, Trini In LA

Race
Posted: 2008-04-10 02:24:00 AM
The problem in Trinidad is all about race, and unless it is addressed there will never be harmony. When I came to Trinidad in 2006 the problem was the Trinity cross, where is the complain about the red cross, we live in grey areas. The citizens of the WORLD need to start confronting the issue. Senator Obama said it well in his speech to the American people. I am tired of hearing about black and white, Negroes and Indians and religion, we're are very pitiful people, we're forever looking to blame somebody else. I am from Negro, India and Spanish background, who should I follow. I remember as a child, I had friends from every race and I never thought about it, so people please look in your heart and face your own racist mentality, then you will see why Trinidad is going to hell.

Equal Opportunity - Out to Lunch
Posted: 2008-04-10 02:52:00 AM
I commend you, Mr. Mark, a person of apparent non-indian heritage for bringing this error in judgement to light. The Caribbean is populated with persons of every ethnic background, education and qualifications. Yet, on the CCJ, there are no persons of 'South Asian/East Indian' heritage. Mr. Rowley only recently reported that T.T. has a smart and educated population. What happened to the persons of 'South Asian' identity who are very qualified to sit on such a Court? Is it as written by George Orwell that all men are equal but some are more equal? T.T. should never be involved in such a body. We are worth more than we seems to be given credit for. Please ensure that any decisions made by this government does not discriminate against any person regardless of religion, sex, age, political affiliation, or otherwise. We do not need to be a part of such backward institutions. Keep working on it, Mr. Mark. We expect and deserve nothing but the best for our citizens.

Senator Mark is Correct
Posted: 2008-04-10 05:04:00 AM
Senator Mark is correct, we should have ethnic balance in the CCJ. Please don't tell us that there are no very qualified persons of Indian origin and even persons also of Chinese origin and other races . In all successful developing countries persons of other races who are competent are included. Such a move promotes harmony and a sense that all persons no matter of race or background can be fairly represented.
Mark
Posted: 2008-04-10 07:29:00 AM
When will this man just go away? Can't the UNC A think of a more inteligent way of voiceing thier opinion that resorting to racial talk. How about finding a person more qualified than the ones nominated and questioning why this person was not called to duty? Justice, Wade Mark, should be in the hands of those most qualified to dispense it, and NOT as you would have it, something acted on by a racially biased judge, acting on behalf of his fellow indians. Just shows how much you know about dispensation of justice. Steven Il.
cry me a river
Posted: 2008-04-10 08:02:00 AM
There is no such thing as affirmitive action in the Caribbean and there should never be. When we look at the highly ranked judges across the caribbean how many Indians (not IndoTrinidadians as they cannot be if they live in Guyana and Suriname) do we see. Just as they can claim that their students are the most qualified to be accepted into Medicine at UWI. oh please. If they have not done enough to make themselves standout in their careers that what do you want them to do, appoint less qualified persons for the sake of ethinical balance. Not even in the US do they do that. If a firm hires a black person they seek the best of the best of the best of the best. So this nonsense is just another excuse to not support something that can only make the caribben region stronger. This is not a handout so dont make it into that type of appointment.
NO INDIAN ON CCJ
Posted: 2008-04-10 08:08:00 AM
It is time that you all stop this nonsense. Are we not Trinidadians and Tobagonians? After the last world cup Sat Maharaj brought in a gentleman(of indian decentwho played in the world cup) from a foreign country to speak to the indian children about football, why not Yorke, Hislop,or Latapy who aare from TNT? Not a word from the blacks in TNT. If this was the other way around it would have been upheaval. This has to stop. A NATION DIVIDED CANNOT STAND. TRU TRINI
Petty
Posted: 2008-04-10 08:31:00 AM
I just want to ask those who wish to bring our petty ethnic politics into the Caribbean region; are there any Syrian, Chinese, Dougla, Caucacian, Amerindians etc? You all are so petty, good God!

PNP Keeping a Close Eye on the CCJ Issue

We are looking closely at this - Opposition

published: Friday, March 28, 2008

Source: Jamaica Gleaner

PEOPLE'S NATIONAL Party (PNP) President Portia Simpson Miller, who had promised to be the Government's "worst nightmare" said that the Opposition would be watching closely to see whether articulated government policies come to fruition.

Simpson Miller, who is leader of the Opposition, said that the PNP would want the Caribbean Court of Justice (CCJ) to be placed on to the legislative agenda this year. She spoke to The Gleaner after Governor General Sir Kenneth Hall presented the Throne Speech at Gordon House, yesterday.

CCJ issue

When the PNP was in Govern-ment, it attempted to replace the Judicial Committee of the Privy Council with the CCJ as Jamaica's court of last resort. However, the Jamaica Labour Party opposed the move, saying that a referendum was necessary to make the decision.

"We are looking closely at this," Simpson Miller said.

She added, "Several of the constitutional matters mentioned are things we had consensus on and others we were still having discussion on".

"They are continuing some of what we were doing," Simpson Miller told The Gleaner.

Among the things promised for this parliamentary year are constitutional reform, passing of the Charter of Rights and justice reform. "All of those were started by the People's National Party when we were in Government," Simpson Miller noted.

Nothing new

Robert Pickersgill, the PNP chairman, is also of the view that the directions as articulated by Sir Kenneth are not novel. He told The Gleaner that it was not the custom of the PNP to comment on the Throne Speech, while adding, "I have not heard anything new.

"It is a continuation of our policies," Pickersgill added. He told The Gleaner that Prime Minister Bruce Golding's first 100 days in office "have long gone and I have not seen any kind of new initiative". Like Simpson Miller, he said that he would be waiting for the Budget Debates for the Govern-ment to chart a clear position.

Come April 1, user fees in public health facilities will be abolished, bringing into being a pre-election promise of free health care made by the Government. Simpson Miller said she was waiting to see how this would work.

"There were some pronouncements made, like, for example, on the user fees in health, and I am waiting to get more information on that to see whether it is something that we would be taking up or commenting on."

Is the CCJ Dead?

Is the CCJ dead?
Excerpt from Vernon Daley's Article : Caught on camera
Source: Jamaica Gleaner
Tuesday, March 25, 2008

Is the Caribbean Court of Justice (CCJ) experiment dead in the water? Last week St Vincent and the Grenadines Opposition Leader Arnhim Eustace withdrew his party's support for appellate jurisdiction of the CCJ. The Opposition in Trinidad is also opposed to the court while the Jamaica Labour Party Government in Jamaica has never warmed to it. Only Barbados and Guyana have made the plunge in having the court replace the UK-based Privy Council.

As far as I know, we in Jamaica have to be repaying a multimillion dollar loan to the Caribbean Development Bank which was used to set up the court. Why are we paying for something we are not using? We need to have the CCJ issue resolved and I'm hoping we'll hear a major statement from Prime Minister Bruce Golding about the matter in the upcoming Budget debate.

SVG Opposition withdraws support for CCJ

SVG Opposition withdraws support for CCJ

Source: Radio Jamaica - Kingston, Jamaica

Monday, 17 March 2008

The leader of the opposition in St. Vincent and the Grenadine, Arnhim Eustace has announced the withdrawal of his party's support for the Caribbean Court of Justice (CCJ).

Most Caribbean countries have pledged to replace the London based Privy Council with the CCJ as their highest court.

Mr. Eustace said he wanted to see more reform to remove what he says is political interference in the administration of justice in the region. "I think I want to see some further movement in relation to the issue of political involvement and what role the political directive can play," said Mr. Eustace.

Charter of Rights held Ransom - Jamaica

Charter of Rights to be held at ransom - PNP will not tender support until CCJ passed

Source: Jamaica Gleaner.

published: Saturday March 15, 2008

Opposition spokesman on Justice and Constitutional Affairs, Senator AJ Nicholson, has served notice on the Bruce Golding-led administration that his party will not support the passage of the Charter of Rights and Freedoms before the Caribbean Court of Justice (CCJ) is established as the nation's final appellate body.

"If there is to be judicial activism, let that judicial activism be done by persons in the Caribbean," Nicholson said in defending his party's position.

He was speaking Thursday night during the Management Institute for National Developments (MIND) public lecture, at the Knutsford Court Hotel, New Kingston.

The CCJ, a lomg-standing controversial issue in Jamaica, was put on ice after a 2005 ruling by the Privy Council that it was unconstitutional for the Jamaican Parliament to pass laws to allow the island to participate in the CCJ in its appellate jurisdiction without having it entrenched in the Constitution.

Privy Council issue

The Privy Council had agreed that Parliament, by simple majority, could abolish appeals to the United Kingdom appeals court, which was not entrenched in the Constitution. However, the law lords also argued that the Privy Council could not be replaced by a court which was not entrenched in the Jamaican Constitution and whose judges, like those of the domestic court, did not have constitutional protection.

Nicholson said the rights charter should be interpreted by local law lords and not left to overseas individuals.

"We are about to have in our constitution a new charter of rights and freedoms, and in that charter, there are going to be some new and modern provisions, which are not recited in the present Constitution," he said. "Jamaica will have to consider deeply whether it wishes the provisions of that charter to be interpreted and adjudicated upon by a court in the United Kingdom, or a court here in the Caribbean, a court of our own."

The Charter of Rights and Freedoms, which has been discussed on and off in Parliament for about 25 years, is a piece of legislation which seeks to provide members of the public with a list of fundamental rights and privileges that will be enshrined in or deeply protected by the Constitution.

While in government, Nicholson's People's National Party had championed both the CCJ and the rights charter.

On Thursday night, he said his party would now welcome a referendum on the CCJ.

"I also intend to table in the Senate, very soon, a resolution suggesting to the Government that we go ahead and deal with [this] outstanding matter," he said.

Minister of Justice and Attorney General Dorothy Lightbourne told The Gleaner yesterday afternoon that she did not have an immediate response to Nicholson's comments.

CCJ: Research Guide

The Caribbean Court of Justice: A Research Guide
Source: LLRX.com Thu, 28 Feb 2008

Introduction

This guide is designed to facilitate research on the Caribbean Court of Justice, a new court which was inaugurated on April 16, 2005 in Port of Spain, Trinidad and Tobago. The court is expected to serve as a court of last resort for Caribbean states, eventually replacing the Judicial Committee of the Privy Council in the United Kingdom The guide traces the court's history and outlines its mandate and structure. It also provides information on the court's funding, its justices and recent judgments. The guide is also a useful resource for research on the Caribbean Community (CARICOM) and the CARICOM Single Market and Economy (CSME).

History of the Caribbean Court of Justice

Regional appellate courts, though short-lived, have operated in the Caribbean over the course of its history. Two important forerunners of the Caribbean Court of Justice are the itinerant West Indian Court of Appeal, established during the colonial period, and the Federal Supreme Court which operated between 1958 and 1962 when the region experimented with federal governance.
In its 1992 report, the West Indian Commission recommended the establishment of a Caribbean Supreme Court to replace the Judicial Committee of the Privy Council, a Committee considered detached from the Caribbean reality, and a constant reminder of the region's colonial past.

The Commission's recommendation was just one of a number of calls over time from various quarters for a permanent regional court in order to strengthen Caribbean jurisprudence, and promote social and economic stability. Caribbean economic and social integration led to the formation of CARICOM, which was established by the Treaty of Chaguaramas which came into force on August 1, 1973. The Revised Treaty of Chaguaramas Establishing the Caribbean Community, Including the CARICOM Single Market and Economy entered into force on January 1, 2006.

Controversy has surrounded the court even before its inauguration, and the literature on the court is replete with references to it as a "hanging court", due largely to the landmark 1993 Privy Council ruling on Pratt and Morgan, (Earl Pratt and Ivan Morgan v. The Attorney General for Jamaica, 1993) two Jamaican death row inmates whose sentences were commuted to life. The protracted stay of inmates on death row was considered cruel and inhumane treatment by the Privy Council, which ruled that the sentences of inmates on death row for more than 5 years should be commuted to life. Caribbean human rights organizations suggested that the Court's establishment was a move by regional governments to resume hanging. Critics of such organizations, however, have pointed to historical calls for the court's establishment and also point to the court's original jurisdiction with respect to the Revised Treaty of Chaguaramas.

The Court's Mandate and Structure

The Agreement Establishing the Caribbean Court of Justice entered into force on July 23, 2002. To date, 12 CARICOM member states are signatories to the Agreement. They are: Antigua & Barbuda; Barbados, Belize; Dominica; Grenada; Guyana; Jamaica; St. Kitts & Nevis; St. Lucia; St. Vincent and the Grenadines; Suriname and Trinidad & Tobago. However, only Barbados and Guyana have made the court their final appellate court. Other member states are pursuing constitutional reform in order to replace the Judicial Committee of the Privy Council.

The Court is considered unique in terms of its mandate and structure, particularly with respect to its dual jurisdictions. As a replacement of the Judicial Committee of the Privy Council, the Court will exercise an appellate jurisdiction (Part 111). In addition, the Court is vested with an original jurisdiction (Part 11, Article X1) with regard to the interpretation and application of the Treaty Establishing the Caribbean Community.

Regarding its appellate jurisdiction, the Court will review and rule on appeals arising from civil and criminal cases originating from common law courts in the jurisdiction of states party to the Agreement Establishing the Caribbean Court of Justice.

Justices

There are 7 justices of the Caribbean Court of Justice, six of whom are male. Below are the names of the justices and their citizenship:

Right Honorable Mr. Justice Michael de la Bastide - President (Trinidad & Tobago)
The Honorable Mr. Justice Rolston Nelson (Trinidad & Tobago)
The Honorable Mr. Justice Duke E.E. Pollard (Guyana)
The Honorable Mr. Justice Adrian Saunders (St. Vincent & The Grenadines)
The Honorable Madame Justice Desiree Bernard (Guyana)
The Honorable Mr. Justice David Hayton (United Kingdom)
The Honorable Mr. Justice Jacob Wit (Netherlands Antilles)

The Regional Judicial and Legal Services Commission (RJLSC) appoints judges of the Caribbean Court of Justice. The eleven-member Commission is headed by a Court President who serves as Chairman of the Commission. The other members of the commission are appointed by regional legal, educational and public sector institutions.

The President of the Court is appointed by participating Caribbean States on the Commission's recommendation and may only be removed on the Commission's recommendation. Judges may only be removed from office by a tribunal's recommendation.

Article 1X states that the President of the Court holds office "for a non-renewable term of 7 years or until he attains the age of seventy-two years". A judge of the court "shall hold office until he attains the age of seventy-two years" (Article 1X 3).

Court Rules

The following Rules of the Caribbean Court of Justice are available on the court's website: http://www.caribbeancourtofjustice.org/rules.html
The Caribbean Court of Justice (Original Jurisdiction) Rules 2005
The Caribbean Court of Justice (Original Jurisdiction) (Amendment) Rules 2006
The Caribbean Court of Justice (Appellate Jurisdiction) Rules 2005
The Caribbean Court of Justice (Appellate Jurisdiction) (Amendment) Rules 2006

Funding

The Caribbean Development Bank administers a trust fund of US$100 million to meet the court's expenses during its first five years of operation The Government of Trinidad and Tobago provided the building which currently houses the court. The Court's independent source of funding is expected to ensure its autonomy and decrease the risk of political pressure with respect to its judgments.

Judgements

For a review of judgments of the court to date, please see the following http://www.caribbeancourtofjustice.org/judgments.html

Code of Ethics

The court's code of ethics is available at: http://www.caribbeancourtofjustice.org/codeofethics.html

References and Further Reading

The Caribbean Court of Justice
Agreement Establishing the Caribbean Court of Justice http://www.caribbeancourtofjustice.org/courtadministration/ccj_agreement.pdf

The Caribbean Court of Justice: How the Court Works; Original Jurisdiction. CARICOM Secretariat, 2005.

The Caribbean Court of Justice: A Unique Institution of Caribbean Creativity. Sir David Simmons. 29 Nova L. Rev. 171 (2004-2005)

The Caribbean Court of Justice: Enhancing the Law of International Organizations. Sheldon A. McDonald. 27 Fordham Int'l. L. J. 930 (2003-2004)

The Case for a Caribbean Court of Appeal. M.A. de la Bastide. 5 Caribbean L. Rev. 402-403 (1995)

The Formation of the Caribbean Court of Justice: The Sunset of British Colonial Rule in the English-Speaking Caribbean. Leonard Birdson. U. Miami Inter-Am. L. Rev. 197 (2004-2005)

The Caribbean Court of Justice: The History and Analysis of the Debate. Hugh Rawlins. CARICOM Secretariat, 2000.

The Caribbean Court of Justice: Closing the Circle of Independence. D. E. Pollard. Caribbean Law Publishing Company, 2004.

Caribbean Justice for All: The Case for a Caribbean Regional Court. Hugh Rawlins et al. Faculty of Law, University of the West Indies, Barbados. 2000.

International Dispute Resolution in Latin America: An Institutional Overview. Christian Heathley. Kluwer Law International, 2007.

Alumni Research Guide: A Guide to Researching the Caribbean Court of Justice. Rhea P. Hamilton. 27 Brooklyn Journal of International Law 531, (2002).

CARICOM and the CSME
The CARICOM System: Basic Instruments. D.E. Pollard. Caribbean Law Publishing Company, 2003.

Treaty of Chaguaramas http://www.caricom.org/jsp/community/original_treaty-text.pdf

The Revised Treaty of Chaguaramas Establishing the Caribbean Community, Including the CARICOM Single Market and Economy http://www.caricom.org/jsp/community/revised_treaty-text.pdf

Regional Integration: A Case Study of the Caribbean Community (CARICOM) 5 Caribbean L. Rev. 85. (1995)

CARICOM Single Market and Economy: Genesis and Prognosis. Kenneth Hall & Myrtle Chuck-A-Sang. Ian Randle, 2007

Legal Problems of Caribbean Integration: A Study on the Legal Aspects of CARICOM. Hans J. Geiser et al. Sijthoff, 1976.

Report of the Secretary General of the Caribbean Community. CARICOM Secretariat (coverage: 1983 -)

CARICOM Perspective. CARICOM Secretariat (coverage 1980-)

CARICOMview: Newsletter of the CARICOM Secretariat. (coverage 1995-)

Caribbean Jurisprudence and Judicial Reform
Commonwealth Caribbean Law and Legal Systems. Rose-Marie Belle Antoine. Cavendish Publishers, 1999.

Judicial Reform in Latin America and the Caribbean: Proceedings of a World Bank Conference. Malcolm Rowat et al (eds.). Washington, D.C., World Bank, 1995.

Time for Action: Report of the West Indian Commission. Sir Shridath Ramphal. University of the West Indies Press, 1992.

Commonwealth Caribbean Public Law. Albert K. Fiadjoe. Routledge-Cavendish, 2007.
Judicial Reform in the Caribbean. William Charles, et al. Inter-American Development Bank, 1999.

Websites
The Caribbean Court of Justice http://www.caribbeancourtofjustice.org/
CARICOM Secretariat http://www.caricom.org/
Caribbean Development Bank http://www.caribank.org/
Jamaican Bar Association http://www.jambar.org.jm/jamaican_bar_association.htm
Organization of Eastern Caribbean States Bar Association (OECS Bar Association) http://www.oecsbar.org/

Jamaica Labour Party Urged to Support CCJ

JLP urged to back regional court

Source : Jamaica Gleaner

published: Wednesday February 13, 2008

The Editor, Sir:

I noted with more than passing interest your reference to the Prime Minister in a recent editorial as an "emerging regionalist". If, as I trust, this was intended to encourage him to give maximum support to regional cooperation, there is an immediate opportunity for him to do so.

As you rightly point out, the best hope for the Caribbean to meet the challenges of globalisation and international free trade lies in the area of regional cooperation in investment and production. This is what the journey towards the single market and economy is all about.

An integral part of this process of cooperation is the Caribbean Court of Justice, of which Jamaica is a member and the largest contributor to its costs. We are, however, unable to reap the full benefit of our membership because of a ruling of the Judicial Committee of the Privy Council nullifying legislation designed to make it our final court of appeal.

Practical effect
The practical effect of that decision is that the Caribbean Court of Justice cannot become our final appellate tribunal without the support and cooperation of both the Government and the parliamentary Opposition. As long as Mr Seaga was in charge of the Jamaica Labour Party, it did not seem likely that such cooperation would be forthcoming.

With Mr Golding's assumption of that position, however, there were signs of less resistance. At the instance of then Prime Minister Patterson and Mr Golding, a series of meetings were held between myself and Delroy Chuck, who was then the JLP spokesperson on these matters.

We arrived at a legislative and consultative procedure which satisfied the fundamental concerns of both parties, while being faithful to the ruling of the law lords in London. All that now remains is for the necessary legislation to be brought to Parliament. The general election intervened but this can now be done, if the Jamaica Labour Party finally and firmly adopts a policy of support for the court as part of the process of regional cooperation.

Desirable objective
Regional economic cooperation has always been a desirable objective. A regional appellate court, established by the region for the region, is a signal plank of that cooperation. Taking into account pressing matters relating to justice and security, such cooperation, as you have properly suggested, has now moved from the desirable to the imperative.

Mr Golding has also been exhorting others within the CARICOM family to eschew "mendicancy" and to free themselves "from the psychological shackles of slavery", in relation to the countries of CARIFORUM subscribing to the economic partnership agreement with the European Union in its present form.

It is indeed ironic that, for decades, influential voices within the region have insisted that mendicancy and mental slavery are two of the foundation stones upon which continued resistance to de-linking from the Judicial Committee of the Privy Council are erected.

The ball is, therefore, now in the Prime Minister's court to show good faith by setting the stage for Jamaicans to remove that real or perceived beam from our collective eye.

I am, etc.,
A.J. NICHOLSON
Opposition
Spokesman on Justice

Possible Case for the CCJ

Flour issue needs settled thoughts
Wednesday, January 30, 2008

Source: Antigua Sun

Trade disputes are a real and expected eventuality of most regions in the world, especially where economies thrive.

We say this against the background of the obvious disagreements within the sub-region over the steep spike in flour as imposed by the Eastern Caribbean Group of Companies (ECGC), putting a heavy strain on those companies in Antigua and Barbuda that depend on the product and an even greater strain on consumers.

The product and its derivatives do indeed fall in the category of a staple here in Antigua and Barbuda as there is a heavy dependence by consumers. Nonetheless, the entire dispute may have gone the way of unfortunate, especially the turn it has taken as reported by Trade Co-ordinator Dr. Clarence Henry in the front page of the Antigua Sun of yesterday’s issue.

Now, as Dr. Henry has explained, options are being sought since the country is no longer prepared to accept the increase in cost that the ECGC is seeking to exact from the purchasers of the product throughout the region. The matter, Dr. Henry noted, could be taken as far as the Caribbean Court of Justice for settlement under its trade dispute jurisdiction or even the recently established Caribbean Community Competition Commission.

These institutions qualify as a sort of last resort entities when round the table negotiations prove futile. Now, Antigua and Barbuda is mulling the option of seeking settlement through a Caricom mediator because of the obvious void within the organisation of the OECS to deal with these realities of today. Issue can easily be made of the possibility that this is one of the areas where our leaders and the region have fallen out of step with the times. When Antigua and Barbuda presented its proposal, Dr. Henry noted, to be allowed to import 50 per cent of the 100-pound sacks of flour from medium developed countries in the region and sources outside the Caribbean, several of the OECS territories flatly rejected this idea.

The proposal from one territory was for the government to undertake the importation of the commodity. This of course would place an additional burden on the government’s already strained coffers and of course rob private sector interests of needed business.

Article 164 of the revised Treaty of Chaguaramas, which governs Caricom, was another issue that was cited by at least one other territory. That country’s prime minister felt that the proposals by Antigua and Barbuda would serve to undermine the protection mechanism within the treaty for fledgling businesses in the region.

To his credit, Dr. Henry hit the proverbial nail on the head.

“These mills are being shielded by their governments and are attempting to hide under the cover of this OECS family,” Dr. Henry stated.

The question, is at what cost and for how long, does the region intend to stand behind these protective trade regimes in a market that is supposed to be growing and dynamic? Not saying that we ignore the treaties, laws and regulations that maintain balance and order, but at the same time consideration must be given to how policies affect the thousands of consumers whose spending allows big businesses like the ECGC to thrive.

A balance must be able to be struck and compromise must be embraced around the negotiation table. We would not want to see an important business go under, but at the same time, that same entity is in a much better position to withstand the shock of the changes on the world market than the ordinary man. We are pretty sure of this.

St. Lucia Embraces the CCJ Appellate Jurisdiction

St Lucia to join CCJ
Source: Caribbean Broadcasting Corporation

Friday, 25 January 2008

Prime Minister Stephenson King Thursday said his government is anxious to have the Caribbean Court of Justice (CCJ) established as St Lucia’s final court as he attempted to clear the air on a previous statement made about the regional court.

In a press statement King explained that a recent comment made to the media in Dominica that the Privy Council had served St. Lucia well, has been interpreted by some to mean that St. Lucia is in no hurry to join the CCJ.

Speaking to reporters during an Organisation of Eastern Caribbean States (OECS) summit last week, King said: "My government has always had the view, even when we were in opposition, that we should proceed cautiously with sub scri ption and participation in the CCJ ... It simply means that as a new government there is need for cautious acceptance of the intention of the CCJ".

However, in his statement released Thursday, King said St Lucia is anxious to have the CCJ constituted as the country’s final Court of Appeal but the constitution of St. Lucia provides for certain procedures to be followed, including parliamentary approval before this can be done.

"I wish to inform the public both here and abroad that my government has already commenced discussion on possible ways in which those constitutional requirements can be addressed so that the CCJ can become St. Lucia’s final Court of Appeal in civil and criminal matters in due course," he noted.

King said that St. Lucia is already part of the CCJ and his government has taken no decision to the contrary. "The fact is that St. Lucia has already signed on to the agreement establishing the CCJ which is based in Trinidad and Tobago.

"The CCJ functions as an international court with jurisdiction in relation to the interpretation of the treaty establishing the Caribbean Community (CARICOM) and to decide on disputes that may arise between member states of CARICOM.

"This is the original jurisdiction of the CCJ, however, the institution does not yet have the second jurisdiction that is to serve as a final Court of Appeal in respect of civil and criminal matters. This implies that criminal appeals must still be referred to the Privy Council," he noted.

King’s position, as outlined last week, had drawn condemnation from Opposition Leader Dr Kenny Anthony, whose administration was in office when the CCJ was established.

Whither the Caribbean Court of Justice?

Whither the Caribbean Court?
Published on: 1/27/08.

Source: Barbados Nation

THE CARIBBEAN COURT OF JUSTICE (CCJ) was conceived as the final appellate court for civil and criminal matters from English-speaking members of the CARICOM Community (CARICOM). In its original jurisdiction, it would be the tribunal for resolving disputes that arise from the CARICOM Single Market and Economy (CSME), as well as adjudicate in matters referred to it by national courts of the participating countries.

To date, only Guyana and Barbados have signed up on the CCJ as their final court in all matters, although leaders of almost the entire CARICOM membership gave verbal assurances of their commitment to the principle and signed on for a US$100 million trust fund, to be managed by the Caribbean Development Bank.

The signatory countries include Dominica, Antigua/Barbuda, Barbados, Trinidad and Tobago, St Kitts-Nevis, Jamaica, Grenada, St Lucia, St Vincent, and Belize.

Since the establishment of the CCJ a few influential Caribbean people in Jamaica and elsewhere have taken the position that there is nothing wrong with the system of referring cases to the Judicial Committee of the London-based British Privy Council instead of switching to the CCJ. In the context of contemporary Caribbean affairs, this is a most appalling attitude to adopt.

We exist in an increasingly globalised world and it is perceived, even by politicians, that there is need to establish a stronger Caribbean identity. Political leaders, as much as anyone else, should be conscious of the question of sovereignty, precious as this is within the context of the CCJ and the regional integration movement.

At nearly every regional conference leaders ignite a flicker of hope that pan-Caribbean unity is high among their priorities.

Unlike some of the smaller states which now give every impression of making a disgraceful about-face, Jamaica, a notable standout from the now defunct Federation, might now be tending towards closer cooperation by raising the likelihood of a referendum to determine whether it would join the CCJ.

A few days ago, St Lucia's newly appointed Prime Minister Stephenson King is reported as having suggested that he sees nothing wrong with the Privy Council. His predecessor, the late Sir John Compton, a committed regionalist, would be devastated were he still alive.

What does such an utterance do for this region? We can understand the need for amendments to some countries' constitutions to facilitate a switch from the Privy Council to the CCJ, but what we are hearing is a savage blow to those who cherish the dream of a thoroughly united Caribbean to see that others in high office are setting their faces strongly against the regional court.

A few might be happy to become pawns of bigger states. But have they no sense of shame that what they are doing is a reflection on the image of their countries? Do they have no sense of dignity?

What will be the real future of the Caribbean Single Market and Economy which the CCJ was established to serve? Are we in danger of becoming mendicant satellites of some Eastern or Western country?

At the very start of 2008, King's declaration is a crushing blow to the regional integration movement. These islands must demonstrate that they truly stand for something to which they now appear to have been giving only convenient lip service. It really is quite appalling that these statements should be made at this time.

Trinidad and Tobago had its own aberrant behaviour with Basdeo Panday supporting the court when he was Prime Minister but then strenuously opposing it when his party lost the government.

The whole scenario now presenting itself is terrible for these islands if this is the kind of stand the leaders of these less developed CARICOM countries want to take, going in a direction that makes no sense when viewed against the background of a professed commitment to regional cooperation and development.

Where are we going as a predominantly West Indian people? British citizens have recourse to the European Court of Justice even though the House of Lords is located in London? Do we realise that the Privy Council is on record as urging countries such as those in the Caribbean and elsewhere in the Commonwealth, to seek remedies in their own domestic or regional jurisdictions?

There should be a groundswell of the strongest censure by Caribbean people for paper leaders that strut and posture at every opportunity to massage their egos within the region and elsewhere.

CCJ Teleconference Sitting

CCJ in historic teleconference sitting
Monday, January 21st 2008

Source: Stabroek News

In a historic sitting last week the Caribbean Court of Justice (CCJ) held a hearing by way of teleconferencing involving Guyanese attorneys in Guyana while the Court was convened in Trinidad.

The full panel of the Caribbean Court of Justice headed by President Michael De la Bastide and including Justices Rolston Nelson, Desiree Bernard, Adrian Saunders and Jacob Wit heard arguments from Guyanese attorneys in Guyana on an application for leave to appeal as a poor person.

The case of Eileen Ross V Coreen Nelson involves a dispute over ownership of an apartment in Laing Avenue, Georgetown. Both parties were financially challenged and could not afford either travel to the Court in Trinidad or the cost of legal representation at the Court in Trinidad. The applicant Eileen Ross was represented by the firm of Fraser & Housty whose team of attorneys included Stephen Fraser, Nigel Hughes, Teni Housty and Roger Yearwood while Coreen Saunders was represented by Timothy Jonas of De Caires and Fitzpatrick.

The hearing lasted in excess of three hours. After hearing extensive and involved arguments the CCJ granted leave to appeal as a poor person to Eileen Ross. Some of the attorneys interviewed thought it was a significant development in the challenge of bringing the CCJ closer to the average litigant and a positive step in affording the financially challenged greater access to justice.

The CCJ was inaugurated on April 16, 2005.

Owen Arthur's Legacy

A sea change in the Caribbean - Arthur goes
By Christopher Ram
Sunday, January 20th 2008

Source : Stabroek News

Introduction
In a dramatic message, one of Barbados' most successful prime ministers and perhaps a driving force behind the Caribbean Single Market and Economy (CSME), was told unequivocally by voters this week - time for a change. Despite an enviable record of achievement over the last thirteen years, Prime Minister Owen Arthur's Barbados Labour Party lost overwhelmingly to the Democratic Labour Party in what Guyanese journalist Dr Rickey Singh referred to as the mother of all elections. .....

The CCJ

Perhaps the most important regional achievement of Mr Arthur, however, was to persuade his country and its legal profession to join the Caribbean Court of Justice, making it only the second country along with Guyana to make the regional court its highest court. The significance of that situation is underlined given that Barbados is perhaps the most pro-British member of Caricom and not many would have bet against cutting the ties with the Privy Council. Jamaica whose own Gleaner in 1901 (yes, 1901) had called for a regional court to replace the Privy Council, St Lucia under Dr Kenny Anthony and St Vincent under Dr Ralph Gonsalves are all yet to make that crucial commitment to the Caribbean and its jurisprudence.

See full article at: http://www.stabroeknews.com/index.pl/article_sunday_features?id=56537367

CCJ President Appeals for Work!

President of Caribbean court repeats call for more countries to accept its appellate jurisdiction
Source: Stabroek - Georgetown Guyana

By Oscar Ramjeet
Friday, January 18th 2008

The President of the Caribbean Court of Justice (CCJ), Michael de la Bastide, has expressed the hope that more countries will accept the appellate jurisdiction of the CCJ as the final court.

De la Bastide told the Caribbean Media Corporation (CMC) last week that he would like at least one or two other member states who signed the agreement establishing the regional court to do so, so that the Court can get more work.

However it seems as if he will have to wait for quite some time before this materialises since the Bruce Golding government in Jamaica has not listed the CCJ as one of its priorities for the New Year, and Belize which will hold its general elections on February 7 has not included the CCJ and the abolition of the Privy Council as the final court as one of the issues for the electorate, but the Belizeans will vote on whether or not there should be an elected senate .

Golding announced 4 priorities for 2008: (1) more authority to the parliamentary opposition, (2) greater freedom to the press, (3) strengthening and protecting the rights of ordinary citizens and (4) stamping out corruption. No reference was made to the CCJ and the Privy Council.

The Jamaica Labour Party (JLP) government in 1988 under the leadership of Edward Seaga as well as the government of Trinidad and Tobago were in the forefront of the establishment of the regional court, but there has been a change of heart by the JLP after it lost the government. However there is an indication that the new Prime Minister Mr. Golding who took office last September will take steps to remove the Privy Council as the final court but it is not known when this will be done.

It is understood that Jamaicans are concerned about the costs of the court, the retention of the death penalty and the fact that although Jamaica has the largest population, no Jamaican is included in the panel of judges of the regional court.

The Trinidad and Tobago government and the opposition are at loggerheads and it is not likely that early steps will be taken for a constitutional amendment to abolish the Privy Council as the final court.

Since the court was inaugurated on April 16, 2005, general elections were held in St. Vincent and the Grenadines, St. Lucia, Jamaica, and Trinidad and Tobago and the electorates were not asked to vote on whether or not the Privy Council should be removed as the final court.

So far only Guyana and Barbados, two of the 12 countries which signed the agreement establishing the regional Court have accepted the appellate jurisdiction of the CCJ.

The OECS countries, Antigua and Barbuda, Dominica, Grenada, St. Kitts /Nevis, St. Lucia, and St, Vincent and the Grenadines, will have to amend their constitutions to remove the Privy Council as the final court, and it seems as if these governments are not in a hurry to ask the electorate to do so.

The Dutch speaking country of Suriname is still to join.

Last week's call by the CCJ Head for the Caricom governments to make use of the court was not the first time that Mr de la Bastide has urged the respective governments to join the regional court. He did so at a presentation in Jamaica, and in the first publication of the annual report of the CCJ he wrote "I do not hide my disappointment and that of my colleagues that to date only Barbados and Guyana have accepted the Court as the final Court of Appeal in substitution for the Privy Council."

In its 32 months of existence, eight substantive appeals and several applications for leave to appeal were dealt with, and Mr. de la Bastide in his interview with CMC said that the court received nine appeals from Guyana in 2007 which will have to go to management process before being heard.

More Work Needed For Regional Court

CCJ head wants more use to be made of regional court
Friday January 04 2008
BRIDGETOWN, Barbados, (CMC)

The head of the Caribbean Court of Justice (CCJ) is hoping for more work for the regional court this year.

Barbados and Guyana are the only Caribbean Community (Caricom) countries that have signed on to the CCJ which has been in operation since 2005, but President Michael de la Bastide said one of his wishes for 2008 is for more use to be made of the court.

“The hope is that at least one or two of the other members states who signed the agreement establishing the court will accept the appellate jurisdiction of the court,” he told the Caribbean Media Corporation (CMC).

“Also that use will be made of the original jurisdiction of the court for the purpose of enforcing the revised Treaty of Chaguaramas,” he added.

De la Bastide told CMC that the Trinidad-based court has made improvements over the last year.

“We’ve had to revise some of the rules of the court in light of the experience we’ve had in the last two years, particularly with regards to the applications for leave to appeal in the respective courts of appeal,” he said.

“There were some gaps which needed to be filled in order to make sure that everything proceeded properly and smoothly.”

The CCJ president also reported that the court received nine appeals from Guyana in 2007 which will have to go through the case management process before being heard.
He said those matters will be heard shortly.

The CCJ, which was established in February 2001, was inaugurated on 16 April, 2005.

Antigua and Barbuda, Barbados, Belize, Grenada, Guyana, Jamaica, St. Kitts & Nevis, St. Lucia, Suriname and Trinidad & Tobago were the states which originally signed on to the agreement, followed by Dominica and St. Vincent & the Grenadines two years later.

Justice Wit on Constitutional Issues

Travel Ban

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

Date of Publication: December 28, 2007

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

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

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

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

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

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

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

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

Judge Bob Wit weighs in on Constitutional issues

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Opposition Blocks CCJ Bill - Belize

UDP says nay to CCJ

Source: Belize News

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

Published: 21/12/2007

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

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

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

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

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

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

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

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

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

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

Tenure of President of the CCJ

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

Source Stabroek News

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

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

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

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

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

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

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

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

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

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

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

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

The Root of the Problem

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

Source: Jamaica Observer

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

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

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

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

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

Three of dozen

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

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

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

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

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

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

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

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

Playing 'footsy'

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

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

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

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

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

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

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

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

Jurisdiction of the CCJ

Caribbean Court will draw widely from other jurisprudence

Stabroek News - Georgetown,Guyana
by Oscar Ramjeet

Friday, November 16th 2007

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

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

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

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

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

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

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

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

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

Trinidad & the CCJ

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

Source: Jamaica Observer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CCJ - UNRESOLVED

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

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

Electoral system

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

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

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

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

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

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

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

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

Honorary Doctor of Laws conferred on Justice Desiree Bernard, JCCJ

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

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

Click on the link above to see full article.