Citizenship and the Constitution

Published: Sunday | May 31, 2009

Source: Jamaica Gleaner - Jamaica

By: Robert Buddan, Contributor

At its most essential, a Constitution sets out the just and right relations between the State and the citizen. One relationship involves the basis upon which citizens can represent themselves through the state. This is about elections  The other relationship is about how the state represents citizens. This is about sovereignty. The point at which the two meet is where the citizen can represent him or herself in a way that does not undermine the sovereignty of the state.

The matter of dual citizenship  has to be seen in this context - a context of where rights and justice begin and/or end. Rights and justice cannot only be topical when it is convenient to the State and citizen. Nor can constitutional reform be reduced only to dual citizenship because it is politically expedient for a government and its supporters to do so. Yet, this is often what politics is about and when things are done for convenience and expedience, the problem at hand becomes politicised. The real problem then becomes lost in a confusion of convenient arguments and expedient actions.

Higher authority

Take the court rulings for by-elections in West Portland and North East St Catherine. A government has a thin majority by the certification of the Electoral Office. But that thin margin has still to be certified by the constitution, which is a higher authority than the Electoral Office. Election petitions have sought the decision of the courts. The courts have ruled in two cases that the persons elected could not be certified as being legitimately elected because they held dual citizenship. So, in this sense, the elections of September 2007 are still being certified. In the meantime, a slate of candidates certified by the Electoral Office is allowed to govern.

The Government and its spokespersons have made three expedient arguments. One is that it is an absurdity for a Jamaican's right to be elected (though he has dual citizenship) to be less than the right of a Commonwealth citizen who has spent a year in Jamaica. The second is that the Opposition is seeking to topple the Government through the courts. The third is that holding these by-elections is a distraction, is unnecessary, and is a waste of money. Prime Minister Bruce Golding made the first two arguments and Shahine Robinson, who is suspected of holding her seat illegitimately on the same grounds of dual citizenship and dual allegiance, made the last.

Political compromise

The solution offered by the Government is a political compromise, which is what convenience and expediency typically come down to. The compromise is that both sides in Parliament should agree to change the inconvenient clause(s) in the constitution and avoid a possible general election, which the country supposedly does not want at this time - an argument of political expediency. Political compromises are not in themselves bad. But they should be made to save, not substitute fundamental principles, those very principles that often get lost and forgotten in the pursuit of convenience and expediency.

The Opposition's response to the issue rests on three points. It has maintained that these by-elections were important to satisfy constitutional requirements for parliamentary representation; that its challenges in the court seek to uphold the constitution as it stands and that those challenges have been vindicated by the court's decisions so far; and that changes of the relevant clauses in the constitution required a referendum and a decision by the people, and could not be achieved by a compromise of convenience between the members of Parliament. Ultimately, it is saying that the fundamental issue at stake is the constitution, not the government majority. Section 39 is after all, entrenched. For purposes of expediency this might be regarded as absurd. For purposes of democracy, the constitutional fathers might be regarded as wise. It involves the grounds on which a citizen is qualified to represent the sovereign state.

Resolving the problem

This question has come down in practical terms to the problem of dual citizenship and how the country should treat it. Parliament is an important oversight body of the constitution. But sometimes, by an oversight, Parliament itself fails to see and correct some of the problems of the constitution. For 35 years since the Michael Manley government declared its intention to pursue comprehensive reform of the Jamaican Constitution the various joint committees and commissions on constitutional and electoral reform have failed to anticipate this problem or they saw nothing wrong with the section on dual citizenship. This is why it appears expedient now for the matter to be raised the way it has been since September 2007. The press and citizens, especially those who have dual citizenship, have also failed to raise it in the context of constitutional reform.

Hot debates

The hot debates over the constitution have been about whether we should retain the British monarch as head of state or have one of our own; deepen entrenchment over the fundamental rights of citizens and limit the state's powers to suspend those rights; adopt a more proportional arrangement for electing governments rather than keeping the 'winner-takes-all' electoral system; and have the Caribbean Court of Justice as our court of final appeal rather than using the British Privy Council for that purpose.

These are all vital matters. But as more and more Jamaicans came to live overseas and as we called upon more of them to serve the country, we (and they) somehow failed to ask the logical follow-up: Can they serve in Parliament even if they have dual citizenship and do Jamaican citizens, dual or otherwise, have the same right to serve as Commonwealth citizens?

Now that the matter has come to light we have to address it. But we cannot address it conveniently and expediently. To do that will get us into trouble of inconsistency.

Upcoming by-election

In the short weeks ahead the country will focus on the upcoming by-election in St Catherine. The by-election will get more attention than constitutional reform has received in any three-week period over the past 12 years save the attention given to the Caribbean Court of Justice. At least that issue was not about political expediency. It had no bearing on the Government's majority. The focus will narrowly be on the PNP-JLP competition for power, election tactics, spending, and who wins. When all of these by-elections are over, we should return to comprehensively review our Constitution. We cannot simply pick out the parts that are convenient from time to time to debate. No wonder constitutional reform has failed to get anywhere.

Caricom: Lost within a widened Caribbean Community?

Caricom: Lost within a widened Caribbean Community?
Sir Ronald Sanders
Sunday, May 24, 2009

Source: Jamaica Observer

A technical team has been appointed by the foreign ministers of the Caribbean Community and Common Market (Caricom) to consider an application from the Dominican Republic to join the 15-nation group. The team has been asked to have the report ready for consideration by Caricom heads of government when they meet in Guyana in July.

This will not be an easy process by any means.

Three factors are at play.

The first of these is that Caricom has not yet sufficiently deepened the relationship among its existing members. The second is the different interests of the Caricom countries - some might see an advantage in greater access to the DR's market, while others would regard opening their own markets to the DR as a disadvantage to local companies. The third is deep concerns of Haiti about the DR with regard to human rights issues related to labour and migration.

When the West Indian Commission (WIC) produced its report, "Time for Action", in 1992, it placed great importance on deepening the relationship between the then 13 Caricom member states - all of whom were English-speaking. The Commission regarded the 13 as a "core group" who should deepen their relationship in furtherance of their collective interest in the region, the hemisphere and the wider world.

Amongst the actions that the WIC recommended was the creation of a Single Market and Economy, the establishment of the Caribbean Court of Justice (CCJ) to resolve trade and investment disputes and to replace the British Privy Council as a final appellate court, and the institutionalisation of a Commission - similar to the Commission of the European Union - to manage the operations of Caricom including the Single Market and Economy and external economic relations.

Specifically, the WIC said: "The West Indies must both deepen the process of integration and reach out to a wider Caribbean in appropriate levels of co-operation. The dual-track approach may produce differing levels of integration within the Caribbean; it may produce circles of association that start with the intimate West Indian family and others that encompass an extended family of the non-English-speaking islands of the Caribbean, and a still larger circle of closer relations with countries of the Caribbean Basin that include territories of the South and Central American littoral."

The WIC was especially concerned that "on the economic side, we have to feel our way in enlarging the Caricom market so that we make progress in that direction without being overwhelmed by new members and end up being lost within our own widened community".
President of the Dominican Republic, Leonel Fernandez. The DR has applied for membership to the 15-nation Caricom.

This process was not followed.

Caricom admitted Suriname and then Haiti to membership before the process of deepening the relationship between its core members had advanced very far. The Single Market was not launched until 2006 - 14 years after it was proposed - and its implementation by several countries has been painfully slow since then. The CCJ, while it operates as a court of original jurisdiction for trade and investment disputes among Caricom countries, is not the final appellate court for all but two countries, and the machinery for governance of Caricom remains ineffective since neither a Commission with executive authority nor anything akin to it has been established.

This failure to consolidate and advance the Caricom inner core has weakened the organisation and the capacity of its member states to bargain effectively in the international community and to strengthen their own economies. And, the introduction of new members, before the relationship has been deepened, complicates the process even more, particularly as new members have brought different laws, different domestic decision-making processes and different ambitions.

The argument remains valid that even now Caricom should deepen its own core arrangements by completing the establishment of its Single Market before attempting to expand its membership further. Indeed, expanded membership may serve to slow down - if not derail - the process of moving toward a Single Economy which would have to include a common currency, harmonised tax policies, the development of a Caricom-wide social security system, and free movement of people for several categories of workers.

The DR may not be interested in pursuing these stated goals of Caricom.

On the external relations of Caricom, expanded membership now could also impair the development of harmonised foreign policies. While the Caricom Treaty calls for the co-ordination of the foreign policies of its member states, it is clear that to deal effectively with the international community, co-ordination will not be enough. This is a matter that both existing Caricom countries and the DR will have to consider carefully in their separate interests, for their interests will not always converge.

With regard to new market opportunities, while a free trade agreement exists between the DR and Caricom countries, it covers only trade in about 400 products; it does not cover services. The free trade agreement between the DR and Caricom countries was worth US$578 million last year. But, of that total, natural gas imports from Trinidad and Tobago alone accounted for US$546 million; the remaining US$32 million was neither here nor there. Trinidad and Tobago's natural gas exports to the DR would have taken place even in the absence of a free trade agreement.

Significantly, in 2007 every Caricom country, except Belize and Trinidad and Tobago, had a negative trade balance with the DR. In other words, they did not benefit from the free trade agreement.

But since the European Union (EU) insisted that the DR be part of the Economic Partnership Agreement (EPA) with Caricom, which was signed last year, Caricom countries are compelled to liberalise goods, services and investment with the DR at the same rate as with the EU. Therefore, from the DR's viewpoint, even though there would be benefits in participating in Caricom's single market, the obligations of the "Single Economy" and "Community" aspects of the Caricom Treaty may be too much for it to bear. In any event, it would have to seek a waiver from Caricom's common external tariff since it is higher than the DR's and would increase the cost of imports and make exports less competitive.

Then there are human rights issues over labour and migration between Haiti - already a member state of Caricom - and the DR. Even if other Caricom countries would be willing to limit the DR's membership of Caricom to its Common Market aspects only and not to the Community dimension which would include foreign policy, it is unlikely that Haiti would agree to the DR's membership without binding assurances on these two issues - they are assurances the DR may not be able to give.

The Caricom Treaty does provide for associate membership of Caricom. It is an option that both the DR and existing Caricom states might consider at this time in both their interests.

Sir Ronald Sanders is a consultant and former Caribbean diplomat

Lawyers in Jamaica press Govt on CCJ

Lawyers press Gov't on CCJ
Published: Thursday May 21, 2009
Daraine Luton, Staff Reporter

Source: Jamaica Gleaner

THE JAMAICAN Bar Association has moved a resolution at its annual general meeting, urging the Government to move forward with the Caribbean Court of Justice (CCJ).

The resolution calls for "the Government of Jamaica and the other treaty states to address the outstanding obstacles to Jamaica's participation in the Caribbean Court of Justice at the appellate level".

The Bar Association also called for the Government "to take appropriate steps to increase the insulation of the court from political interference, to make the court more accessible as regards cost and jurisdiction and in particular to entrench the Caribbean Court of Justice".

The United Kingdom-based Judicial Committee of the Privy Council is the country's final court of appeal.

The Opposition People's National Party (PNP), which set in motion the CCJ when it held state power, has said that it would like the obstacles to be removed for the abolition of the Privy Council and for the CCJ to become the country's final court of appeal.

Referendum

However, the governing Jamaica Labour Party (JLP) has maintained that it would only remove the Privy Council as the country's final court of appeal through a referendum. However, the PNP has said that a referendum is not necessary.

The PNP has hinted that it would be pressuring the Government to scrap links to the Privy Council as it is not willing to have the Charter of Rights, which is a review of chapter three of the Jamaican Constitution, being adjudicated by the Privy Council.

"We would want some guarantees about moving towards the Caribbean Court of Justice," A.J. Nicholson, opposition spokesperson on justice, has said.

Meanwhile, during its AGM on March 13, the Bar Association noted that Jamaica now expends considerable funds by way of repayment of the loan from the Caribbean Development Bank, which established the trust which funds the court.

It also said that it is desirable that the final Court of Appeal of Jamaica be more accessible to the average joe, with regard to expense and distance, as well as the requirements for United Kingdom visas.

Synopsis: The Vagaries of Democracy in the Caribbean

Commentary: The vagaries of democracy in the Caribbean Source: Caribbean Net News
Published on Monday, May 18, 2009	Full Text:  Print Version

.......But since political culture affects the well-being of all other institutions in society for better or for worse, short of reconciling deeper psychological, social and leadership dysfunctions, the Caribbean Single Market Economy and the Caribbean Court of Justice remains a tenderly affectionate promise, unlikely to unify, strengthen, and improve the region. 

When will the Caribbean mind yearn to become the motif for our growth and inter-dependence? Exploring this possibility may reveal the splendor of our imagination and a heart of gold.

Review of the CCJ - 5 years later

After five years only two countries accept CCJ as final appellate court
Published on Saturday, May 16, 2009	Print Version
Source: Caribbean Net News The Caribbean Court of Justice (CCJ) entered its fifth year on April 12 since it was inaugurated at a lavish ceremony in Port of Spain, which was attended by nearly all the Heads of Government of the Caribbean Community (CARICOM) as well as most legal luminaries in the region.  The Court was, however, initially established in February 2001, more than eight years ago.  It is very unfortunate that, after such a long time, only two countries, Guyana and Barbados, have accepted the CCJ as the final court. No other country has joined after 48 long months. This is indeed a misfortune since most Caribbean countries rid themselves of colonial rule more than four decades ago: Jamaica and Trinidad and Tobago in 1962, Guyana and Barbados in 1966 and the Eastern Caribbean countries a few years later.  Since these former British colonies achieved political independence so long ago, one would have expected them to have judicial independence as well, especially since they have highly qualified and experienced judges.  I had the privilege of visiting the Court while in Trinidad for the Fifth Summit of the Americas and was impressed by what I saw -- besides the well equipped libraries, spacious conference room, robing room, etc., I was elated with the Court room’s appearance, with the most modern electronic equipment, which is said to be one of the best in the world. The facilities include: a document reader/visual presenter; the ability to use laptop computers; DVF/VCR; audio/video digital recording (microphones situated throughout the courtroom); wireless internet access, and audio/video transcripts.  Former Trinidad and Tobago Attorney General Ramesh Maharaj said that the judges have little to do and it is a waste of taxpayers’ money. His statement is somewhat surprising since it was under his party's administration that the Court was established and up to this day Trinidad and Tobago has not joined.  Dominica’s Prime Minister Roosevelt Skerrit made a sweeping statement when he said that if the region is not serious about the CCJ, it should close down the court.  Skeritt, a few months ago, asked his Attorney General to engage the local Bar Association as well as the political opposition with a view of having the decision fully implemented. I have not heard the progress of those discussions.  However, there is some glimmer of hope that at least one more country will join. Belize’s Prime Minister Dean Barrow, one of the first graduates from the Council of Legal Education in the Caribbean, has announced that his country will take steps to remove the Privy Council as the final Court of Appeal.  I contacted his office on Tuesday and was advised that a Bill will be presented to Parliament next month to pave the way to remove the Privy Council as the final Court. Three-fourths of parliamentary votes are required, but it is understood that the opposition will support the move since it had advocated the measure when it was in government.  There is no doubt that there is reluctance on the part of governments to get rid of the Privy Council as the final court for varying reasons. Jamaica at one stage claimed that the CCJ will be a hanging court, but they cannot press that issue now because that government recently passed legislation to retain the death penalty.  The JLP government was in power when the idea of setting up of the CCJ first started, but now the party, which is back in power after 15 years, is somewhat reluctant -- new reasons have surfaced, including the heavy costs of maintaining the Court, pointing out that, when the first idea was mooted 20 years ago, the Jamaican dollar was much stronger, and the latest is that the Court does not have a Jamaican as a judge, although its population is nearly 2.5 million -- more than all the other 11 countries combined.  Former Jamaican Attorney General Dr Oswald Harding, who was the AG in 1988, said that he is very disturbed that no Jamaican was appointed as judge when he knew that about eight well qualified jurists had applied.  I have been advocating for a distinguished West Indian to be appointed as a lobbyist, but both CARICOM and the CCJ are both reluctant to do so. CARICOM, it is understood, feels it should distance itself from the CCJ, especially since it is a party to recent litigation before the Court. I refer to a law suit brought by Trinidad and Tobago Cement Company against CARICOM.  On the other hand, the CCJ feels that it should not indulge in such an exercise; but they nevertheless held seminars in jurisdictions such as Jamaica, Antigua, Barbados, Belize on the functions and the operations of the original jurisdiction of the CCJ.  It is worrying that CARICOM countries do not even use the CCJ in its original jurisdictions, since they do not have to seek constitutional amendments to do so. In four long years only three such matters have reached the Court.  It is my humble and respectful view that CARICOM should have sensitised the public and ensured that the necessary legislation was in place to accept the CCJ as the final court long before the Court was established and, as Dame Dr Bernice Lake, QC, a distinguished jurist from Anguilla, put it, "The regional governments disenfranchised the public when they set up the CCJ without referenda."

Duke Pollard CJC endorsed as a candidate to seek election as a judge of the ICC.

Region bids for ICC seat -by Rickey Singh Source: Trinidad news Saturday, May 16th 2009

CARICOM Foreign Ministers have endorsed candidatures for a seat on the International Criminal Court (ICC) and re-election of an Assistant Secretary General of the Organisation of American States (OAS). Guyana-born jurist Dr Duke Pollard, currently one of the seven justices of the Port of Spain-based Caribbean Court of Justice (CCJ), has been endorsed as a candidate to seek election as a judge of the ICC. The current Assistant Secretary General of the OAS, Suriname-born diplomat, Albert Ramdin, was given the green light to seek re-election in that post of the Washington-based hemispheric organisation. The unanimous endorsements, which came during last week's meeting of Caricom Foreign Ministers in Kingston, Jamaica, will be forwarded for expected ratification by Heads of Government when they meet for their regular annual summit in Guyana in July. Pollard, a former consultant on international law projects for the UN and Director of the Caricom Legislative Drafting Facility prior to his CCJ appointment, may have to compete with other candidates of  the Latin America region. Trinidad and Tobago's former attorney general, Karl Hudson-Phillips QC, was the first candidate of the Carib-bean/Latin America region to be elected as a judge of the ICC which he served for four years before opting to resign for personal reasons. Ramdin, a former assistant secretary general of Caricom with responsibilities for Foreign and Community Relations, had served for three years as special adviser to ex-OAS Secretary General, Cesar Gaviria, before seeking the office he has now been holding since 2005. The offices of both OAS incumbents-Secretary General, Jose Miguel Insulza, Chile's former foreign minister, and Ramdin are due for election at the organisation's General Assembly in June 2010.

Barbados seeks to extend retirement age of CCJ judges to 75

Barbados seeks to extend retirement age of CCJ judges to 75
Published on Friday, May 15, 2009	Print Version
By Oscar Ramjeet  Source: Caribbean Net News Special Correspondent  Email: oscar@caribbeanetnews.com   BRIDGETOWN, Barbados -- While most Caribbean countries seem hesitant or reluctant to join the Caribbean Court of Justice, Barbados, which is one of the two countries who have joined the Appellate Jurisdiction of the regional court, is seeking parliamentary approval to extend the retirement age of judges.  The Barbados Parliament is now debating a Bill that primarily speaks to extending the age of retirement of the judges from 72 to 75.  The Barbados Advocate reported that Senator Haynesley Benn, acting Leader of Government Business in the Senate, was leading the debate in the Upper House to the Caribbean Court of Justice (Amendment Bill) and the Constitution (Amendment) Bill.  Benn, who is also Minister of Agriculture, said that it is regrettable that, after nearly 50 years of independence, by some Caribbean Community (CARICOM) member states, that they are still hesitating, and toying with the issue of whether this region should have its own final appellate court, rather than having to rely on its former colonial masters.  The minister also said that it is being suggested that Britain is considering revamping its own judicial system and plans in the near future perhaps to dismantle the Privy Council. He explained that, if agreed to by their legislators, it will probably give way to a system similar to that which presently obtains in the United States of America.  "So we should feel comfortable in the Caribbean having our own Caribbean Court of Justice, where all matters pertaining to the Caribbean can be dealt with here, rather than having to be at the doorsteps of the Privy Council in Britain." Benn said.  Benn said that the extension is a good one, as it allowed the judges to have more time to give of their value to the entity and by extension the judicial culture in the region.

Traders go home

Locals relieved as traders go home Trinidad Express Thu, 02 Apr 2009 21:07 PM PDT Trinidadian merchants are breathing a sigh of relief as traders from India pack up to leave. The local businessmen said they had intended to challenge the matter before the Caribbean Court of Justice to stop  the traders from operating locally. See full article: http://www.trinidadexpress.com

CARICOM secretary general to testify before CCJ

CARICOM secretary general to testify before CCJ in legal battle
Published on Friday, March 27, 2009
Print Version
By Oscar Ramjeet

Caribbean Net News Special Correspondent

PORT OF SPAIN, Trinidad:

Edwin Carrington, Secretary General of the Caribbean Community (CARICOM), has been summoned to give evidence before the Caribbean Court of Justice (CCJ) next week in a multi-million dollar legal battle between Trinidad Cement Limited (TCL) and CARICOM.

The Trinidad Guardian reported that Carrington has already given an affidavit in the matter and he will be subjected to intense cross-examination by lead attorney for TCL, Guyanese national, Dr Claude Denbow SC. Former St. Lucia Prime Minister, Dr Kenny Anthony, will team up with Anthony Astaphan, SC, to represent CARICOM before the CCJ.

The Jamaican government has joined the fray and will be represented by its Attorney General, Douglas Leys, and Candice Rochester.

The hearing will take place next Tuesday and will continue on Wednesday.

On January 15, the CCJ heard an application by the TCL for special leave to commence proceedings before the court against CARICOM under Article 222 of the Revised Treaty of Chaguaramas.

The court received written submissions from CARICOM and, at the hearing, heard the oral submissions of the applicant and the Community.

At the conclusion of the hearing, the court granted special leave to TCL as a private entity to commence proceedings against CARICOM. TCL is seeking several remedies, including a declaration that the decision of CARICOM, dated November 25, 2008, to suspend the Common External Tariff (CET) on imports of grey cement for a period of one year, was “irrational, illegal, unreasonable, null and of no effect”.

The TCL Group's principal market is the CARICOM Common Market established by the revised treaty.

The CCJ is hearing the application in its original jurisdiction.

Dominica confirms support for CCJ

Dominica confirms support for CCJ

Source: Dominica New Online

Originally published: March 21, 2009 08:01:00 PM

Dominica has officially affirmed its plans to sign on to the appelate jurisdiction of the Caribbean Court of Justice (CCJ) and abolish appeals to the British Privy Council.

According to cananews.net, Prime Minister Roosevelt Skerrit made the declaration at last week's CARICOM heads of government summit in Belize.

In an interview with the Caribbean Media Corporation (CMC), Skerrit said that he has already given instructions to engage the Bar Association as well as the political opposition, with the intention of making the decision fully a reality by year-end.

The Dominica leader meanwhile told CMC that members of the Caribbean Community (CARICOM) should state their positions regarding the CCJ, and proposed that if the region is not serious about the CCJ, it should close the Trinidad-based court.

He said a significant amount of resources have been put into the establishment of the CCJ, but with only two CARICOM states (Barbados and Guyana), accepting the CCJ as their final court of appeal. According to the CMC, Skerrit said the Privy Council has no value to the Caribbean people, and he urged countries to discontinue appeals to the British Privy Council.

The CCJ is the regional judicial tribunal which was officially inaugurated in 2005, as a substitution for the British Privy Council. The CCJ is designed to exercise both an appellate and an original jurisdiction.

http://www.dominicanewsonline.com/all_news/caribbean/4636.html

CCJ... Burning issues for CARICOM leaders

EPA, world financial woes, CCJ... Burning issues for CARICOM leaders

Source: The Reporter

Published March 13, 2007

Belize this week played host to the Twentieth Inter-Sessional Meeting of the Conference of Heads of Government of the Caribbean Community (CARICOM) held at the Radisson Hotel on Thursday and Friday.

The meeting zeroed in on a number of issues affecting not only Caribbean nations, but also the Central American region.

Prime Minister Dean Barrow, who is the current Chairman of the Conference of the Heads of Government of the Caribbean Community, in his remarks at the opening on Thursday, set the stage for what the two days of discussions were all about.

He told the gathering, which included heads of states from 11 Caribbean countries, as well as a representative from Nicaragua, that key issues such as the Economic Partnership Agreement (EPA) with the European Union, the global economic and financial crisis and the Caribbean Court of Justice are issues the region must renew its energy on so as to reaffirm the purpose CARICOM citizens both demand and deserve.

“The holding of this meeting here, at the western end of the CARICOM arc, is of special significance,” Barrow told the gathering.

“At a time when thinking big is a necessity, it helps to accentuate the scope and reach of our Community. It helps to underscore the ambition of our grand enterprise. But it also helps to dramatize the problems inherent in taming what can sometimes seem like this wild beast of Caribbean integration.”

The signing of the EPA, says the Prime Minister, “has been, to put it mildly, controversial. The implementation is already throwing up its own obstacles, Mr. Barrow noted.

Barrow described many aspects of the EPA, as time-bound, revisionism and second guessing over-rated commodities.

As to the global financial crisis, Barrow said, the need is for Caribbean leaders to be remindful of what integration was designed to achieve.

He referred to the Preamble to the Revised Treaty of Chaguaramas, which states the need to promote in the CARICOM Community the highest level of efficiency in the production of goods and services “especially with a view to liberalize foreign exchange earnings on the basis of international competitiveness, attaining food security, achieving structural diversification and improving the standard of living of peoples.....”.

The global financial crisis, says Barrow, has been “hovering above us like an incubus. To posit that it should act as a spur rather than a deterrent to consolidation of our CARICOM destiny is one thing. To actually manage our processes in such a way as to make the word flesh, is quite another,” he said.

As to the creation of a single integrated economic space, Barrow says this requires not only common approaches and common policies, but common bureaucratic and administrative procedures.

“And, inevitably, in the process of adjustment to increasing global competitiveness of the whole, the relative importance and performance of individual member states will change.”

The Caribbean Court of Justice, which has been a burning topic across the Caribbean, with only Guyana and Barbados so far opting to use it as their last court of appeal, is another matter Barrow says, he felt compelled to raise in his opening remarks.

“It represents a key element of the Community’s governance process, but so far only two countries use it as their final court of appeal in civil and criminal matters.

The significance of our apparent unwillingness to replace the Privy Council with our own first class jurists, is not lost on our population. It can’t help but contribute to cynicism about the seriousness of our commitment to Caribbean identity.

“I can hardly say this just to be a scold, since Belize is, in this matter, a guilty party. I introduce the subject, rather, in order to employ precept and example.” CARICOM Secretary General, His Excellency Edwin Carrington, who also spoke at Thursday’s opening ceremony, fleshed out the gravity of the global financial crisis, which he says is also affecting Caricom countries.

“There is no exaggeration to say that the meeting is being held at a time when the world “is in its greatest crisis in most of our lifetimes.”

The tourism industry is one of the hardest hit, noted Carrington. Remittances are also fast falling to pittance, he said.

“The energy sector, including its downstream industries, has also been adversely affected as both demand and prices have plummeted. It is difficult to imagine that just seven months ago, analysts were predicting oil prices to soar to U.S. $200 a barrel. Today they stand just over U.S. $40 a barrel.”Carrington will lead a team of CARICOM official to San Ignacio on Saturday March 14, to meet with residents from the area to discus the Caribbean Community.

The event starts at 4 in the afternoon at the Sacred Heart College in San Ignacio.

Belize to abolish appeals to Privy Council and join CCJ

Belize to abolish appeals to Privy Council and join CCJ
Published on Saturday, March 14, 2009
Print Version
By Oscar Ramjeet Caribbean Net News

BELIZE CITY, Belize: Belize will rid itself of the Privy Council and will accept the Caribbean Court of Justice as its final court of appeal.

Belize Prime Minister, Dean BarrowThis announcement was made by the country's Prime Minister Dean Barrow when he addressed CARICOM leaders at the opening of the Twentieth Inter-Sessional Meeting of the Conference of Heads of Government of the Caribbean Community in Belize City on Thursday.

Barrow, who was among the first batch of West Indian trained lawyers graduating in 1975 from the Caribbean Council of Education, said, "It is my intention to end Belize's hesitation to let go to the coat tails of the Privy Council and embrace the Caribbean Court of Justice as Belize's final appellate court, thereby enhancing our Caribbean identity."

The Prime Minister, who is also Chairman of CARICOM, added, "The significance of our apparent unwillingness to replace the Privy Council with our first class jurists is not lost on our populations. It can't help to contribute to cynicism about the seriousness of our commitment to Caribbean identity.”

Barrow admitted that his country should have abolished appeals to the Privy Council long ago when he said, "I can hardly say this just to be a scold, since Belize in this matter is one of the guiltiest parties. I introduce the subject rather in order to employ precept and example. I commend the merit of the court as a critical linchpin of our government, and I also undertake to propose shortly here at home, the constitutional amendment that would allow Belize to sign on to the appellate jurisdiction.”

He took over the Belize government 13 months ago after he defeated Said Musa's party. Musa is also an attorney, but was not interested in joining the regional court. Only Guyana and Barbados have so far accepted the CCJ, which was established in April 2005, as the final court of appeal.

UWI Professors Make the Case for the CCJ

UWI Professors Make the Case for the CCJ
posted (March 11, 2009)
Source: www.7newsbelize.com
http://www.7newsbelize.com/index.php#story11

A forum on the Caribbean Court of Justice began earlier this evening at the University of the West Indies Auditorium. Noted UWI Law Professors Simeon McIntosh and Winston Anderson are presenting papers making the case for the Caribbean Court of Justice. It’s a case and a cause that not many Caribbean nations have been taking up – and Professor Anderson – who is the Executive Director of the Caribbean Law Institute Center at UWI in Barbados - says they hope to demystify the CCJ.

Prof. Winston Anderson, Executive Director – Caribbean Law Institute “We want to achieve the purpose of demystifying what is required and to demonstrate in fact that it is a fairly simple procedure for moving from the Privy Council to the Caribbean Court of Justice, provided that the constitutional requirements are satisfied and we don’t believe there are any insurmountable difficulties in the way of satisfying those constitutional requirements. And as I said my colleague Professor McIntosh will be speaking more in terms of the philosophical reasons why it is so critical important that we own our jurisprudence, that we own our own courts.

We just find it very mystifying as to why other countries have not signed on, particularly because it is the case that these other countries are paying for the court. The court is up and running and we have a situation where the court is operating in Trinidad and Tobago, we have very eminent judges, very respected judges – they are deciding one or two cases that come before them. But the fact is that Belize is paying for them, Jamaica is paying for this, Trinidad and Tobago – all the other countries in the region – we are paying for this court and we’re not using the court.

But we think it is an opportune moment to dialogue with the new government, to dialogue with other stakeholders in Belize to get a sense as to how quickly we can move forward because this is something now that is past due, something that I think should have happened many years ago and certainly something that we hope that can happen in the very near future.

So we expect members of the legal fraternity to be here and we welcome their presence. But equal if no more crucially we want to have a presence of, for want of better words, ordinary Belizean people because this is in an attempt to engage them in the process of discussing the court, discussing the existence of the court, discussing the importance of the court and to have their views; to solicit from them what they think about the future and then to answer any kind of concerns that they may have as to how we go forward.”

Again the forum was scheduled to begin at the UWI auditorium at 5:30 this evening. For some context, the Caribbean Court of Justice is based in Trinidad and was inaugurated four years ago. It is fully functional but only Barbados and Guyana are using it as a court of last appeal.

Inordinate Delay of Civil Appeal in Barbados

'Step on it' Published on: 2/28/09.
by HEATHER-LYN EVANSON

Source: Nation Newspaper, Barbados

THE ISLAND'S COURT OF APPEAL has come in for a tongue-lashing from the region's highest court.

It has to do with the length of time the local appellate court took to deliver one of its judgements.
Recently, the five judges of the Caribbean Court of Justice (CCJ) heard the civil appeal of Yolande Reid and Jerome Reid.

In their decision, the five judges spoke about the five years it took for the Court of Appeal to give its ruling.

Justice of Appeal Adrian Saunders, who delivered the judgement, said the CCJ's President Michael de la Bastide had previously spoken about the issue and had expressed the court's strong disapproval of judicial delays.

"The effectiveness of a judiciary is seriously compromised if it fails to monitor itself in respect of the time taken to deliver judgements and to arrest promptly any tendency to lapse in this aspect of its performance," said Justice Saunders.

"This is the second time we have had occasion to call attention to inordinate delays in the delivery of judgements in Barbados. We trust that effective remedial action, if not already taken, will now be taken to ensure that judgements are delivered within a reasonable time as required by the Constitution of Barbados," the appellate judge said.

The court went on to say it felt that no judgement should be outstanding for longer than six months.

"And unless a case is one of unusual difficulty or complexity, judgement should normally be delivered within three months at most," Justice of Appeal Saunders said.

Justice of Appeal Saunders sat with President of the Court de la Bastide and the Justices of Appeal Desirée Bernard, Jacob Wit and David Hayton.

Summary of Application under the Original Jurisdiction

IN THE CARIBBEAN COURT OF JUSTICE
Original Jurisdiction
CCJ Application No. OA 2 of 2009
Between
TRINIDAD CEMENT LIMITED
TCL GUYANA INCORPORATED Claimants
And
THE STATE OF THE CO-OPERATIVE
REPUBLIC OF GUYANA Defendant

The subject matter of the application relates to the suspension of the implementation of the Common External Tariff (CET) on non-CARICOM imports of cement into Guyana.

The Claimants seek the following relief in their application:-
(a) A declaration that the Republic of Guyana, a party to the Revised Treaty of Chaguaramas and a Member State of the Community has violated the provisions of Article 82 of the said Treaty by failing to implement and maintain the Common External Tariff of 15 per cent in respect of imports of building cement (grey) from non-CARICOM sources as described in the First Schedule in the Guyana Customs Act, Cap. 82:01 under the Heading numbered 2523.29.10;

(b) A declaration that the Government of Guyana as a party to the Revised Treaty of Chaguaramas and a Member State of the Caribbean Community by failing to maintain the Common External Tariff of 15% in respect of imports of building cement (grey) from non-CARICOM sources as described in the First Schedule in the Guyana Customs Act Chapter 82:01 under the heading No. 2523.29.10 has violated the right and entitlement of the Claimants to the protection of the provisions of the Revised Treaty of Chaguaramas and as a consequence the Government of Guyana is liable to pay compensation to the Claimants for any loss suffered by reason of its conduct as aforesaid;

(c) An order directing the Government of the Co-operative Republic of Guyana, a party to the Revised Treaty of Chaguaramas and a Member State of the Community, to bring its regime for imports of building cement (grey) into conformity with Article 82 of the Revised Treaty by implementing and maintaining the Common External Tariff of 15 per cent on imports of cement from non-CARICOM sources;

(d) Damages for lost income suffered by the First Claimant in its capacity as 80% shareholder in the Second Claimant in the amount of US$532,214.00 for the period January to December 2007 and continuing;

(e) Damages for lost profits suffered by the Second Claimant as a direct result of the Republic of Guyana’s failure to implement the Common External Tariff on building cement (grey) in the sum of US$2,084,540.00 for the period of January to December 2007 and continuing;

(f) Exemplary damages;

(g) Interest at such rate and for such period as the Court deems fit;

(h) An order that the costs of these proceedings be borne by the Defendant;

(i) Such further or other orders as the Honourable Court deems fit.

Any person or Contracting Party which wishes to intervene in the proceedings must file an application for leave to intervene within six (6) weeks of notification of the filing of the originating application. Part 14 of the Caribbean Court of Justice (Original Jurisdiction) Rules 2006 sets out the procedure on an application to intervene in the proceedings.

Dated the 27th day of January 2009

Challenging judgment for CARICOM

OUR CARIBBEAN: Challenging judgment for CARICOM

Published on: 2/13/09.
by RICKEY SINGH

Source :Nation News

THE RELEASE on Wednesday by the Caribbean Court of Justice (CCJ) of its 16-page judgment in the case brought against the Caribbean Community by Trinidad Cement Limited (TCL) holds serious implications for the future of the region's economic integration movement.

At the core of TCL's case is that a surprising level of ill-advised suspensions involving the Community's secretary-general and the Council for Trade and Economic Development (COTED) had breached the Common External Tariff (CET) guidelines to the disadvantage of the regional enterprise.

The seven judges of the CCJ – the court empowered with original or exclusive jurisdiction in resolving trade disputes arising from interpretation and implementation of the Revised CARICOM Treaty – has granted special leave to TCL to commence proceedings to challenge the legality of the suspensions authorised by COTED and the secretary general.

Having considered written submissions as well as oral observations, the court, comprising President Michael de la Bastide and Justices Rolston Nelson, Desiree Bernard, Adrian Saunders, David Hayton, Duke Pollard and Jacob Wit, decided TCL had satisfied the conditions to challenge the CET suspension decisions. In doing so, the CCJ rejected the contention of CARICOM that to admit a direct legal challenge by "a private party" to the decision and process of the Community would "greatly hinder the functioning of the Community and constrain the exercise of sovereignty by member states . . .".

Inaugurated on April 16, 2005, in Port-of-Spain, the CCJ is currently the final appeal court for just Barbados and Guyana. It is, however, empowered with original or exclusive jurisdiction for ALL countries that are party to the Revised CARICOM Treaty.

The rulings outlined in the just-released judgement could have the effect, according to one leading regional jurist, of either strengthening or seriously weakening CARICOM. Member states will be required to conform by law to honour the treaty provisions, or amend the relevant provisions.

The essence of TCL's case is that COTED and the Community's secretary-general had acted "irrationally, unreasonably and illegally" by their suspension of the CET to facilitate Jamaica, Suriname and six countries of the Organisation of Eastern Caribbean States to import cement from extra-regional sources in contravention of treaty provisions.

In their collective judgement, the justices noted that COTED and the secretary-general had available to them an "audit report" that confirmed "the supply capacity" of the TCL group to satisfy demands within the Community. In support of this contention, it was pointed out that TCL had consistently supplied between 79 and 93 per cent of the region's demand for cement between 2001 and 2008. The forecast was that TCL would be able to supply 100 per cent of the required demand in 2009 and 93 per cent in 2010.

The judges stated that "the rule of law brings with it legal certainty and protection of rights of states and individuals alike; but at the same time, of necessity it creates legal accountability. Even if such accountability imposes some constraint upon the exercise of sovereign rights of states, the very acceptance of such a constraint in a treaty is in itself an act of sovereignty."
We must now await CARICOM's next move.

CCJ's Second Judgment under it's Original Jurisdiction

CCJ Application No. AR 3 of 2008

Trinidad Cement Ltd

And

The Caribbean Community


M. de la Bastide, President and R Nelson, D Pollard, A Saunders,
D Bernard, J Wit and D Hayton, Judges

Application for special leave to commence proceedings under Article 222 of the Revised Treaty of Chaguaramas was filed at the Court on 11th December 2008 with annexures. Parties submitted written submissions and to the public hearing was held on 15th January 2009

JUDGMENT SUMMARY

COTED and the Secretary General of CARICOM authorised the suspension of the CET on cement for Jamaica and a number of OECS States. TCL, a cement manufacturer, wishes to complain against that suspension and is accordingly requesting special leave to bring an action against the Community seeking :

(1) declarations that the COTED suspension and the Secretary-General’s suspension are irrational or unreasonable, illegal and null and void;

(2) orders setting aside or quashing these suspensions;

(3) a restraining order against the Community and

(4) a mandatory injunction against the Community to revoke the suspensions and notify those affected.

At this stage the CCJ merely had to determine whether TCL had satisfied the conditions for special leave set out in Article 222 of the Revised Treaty. In determining that TCL had satisfied those conditions the CCJ rejected the contention that to admit a direct challenge by a private party to the decision and process of the Community would greatly hinder the functioning of the Community and constrain the exercise of state sovereignty by Member States parties to the Revised Treaty.

The Court stated, inter alia:

"By signing and ratifying the Revised Treaty and thereby conferring on this Court ipso facto a compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the Revised Treaty, the Member States transformed the erstwhile voluntary arrangements in CARICOM into a rule-based system, thus creating and accepting a regional system under the rule of law. A challenge by a private party to decisions of the Community is therefore not only not precluded, but is a manifestation of such a system. Therefore it is not correct to say that by such challenge the functioning of the Community will be greatly hindered or that the exercise of state sovereignty by Member States parties to the Revised Treaty would be unduly constrained. The rule of law brings with it legal certainty and protection of rights of states and individuals alike, but at the same time of necessity it creates legal accountability. Even if such accountability imposes some constraint upon the exercise of sovereign rights of states, the very acceptance of such a constraint in a treaty is in itself an act of sovereignty."

Searching for the Silver Lining

Searching for the Silver Lining
Published: Sunday February 8, 2009
A.J. Nicholson, Contributor

The recent announcement by the prime minister that, by the end of this month, there will be a new governor general in Jamaica, once again brings into focus certain issues relating to the reform of our constitutional arrangements.

It has long been recognised that the method by which the appointment is made of the governor general, who is the representative of our head of state, the British monarch, is less than open and transparent, since the decision rests in the hands of one person, the prime minister.

This is not to say that there has ever been any real quarrel or dissent concerning any of the appointments that have been made since independence. Conventional wisdom, however, holds that the fulfilment of that kind of public obligation requires broader input to satisfy the dictates of transparency.

Political upheaval

Some people say that this kind of issue is really of no moment. They maintain that the status quo of the British monarch as our head of state has no economic, social or political drawback, and 'if it ain't broke don't fix it'. They say that we have not witnessed any kind of social or political upheaval that should drive us to change course in this regard, and that there are other countries which are in that same boat and have managed to climb the economic ladder with sustained success.

The obvious question that arises, therefore, is: what it is that has impelled former colonies within the British empire to change from a monarchical to a republican system of government with their own indigenous heads of state? The answer is simple, yet profound: it serves to instil the kind of confidence which propels their citizens to say and mean that they must rely on themselves to survive.

Economic headaches

And that is the kind of message that must be adopted by the peoples of nation states even in the best of times; in times of crisis, that point of significance becomes an imperative.

Indeed, others will say that this is a time of crisis and economic headaches, and that it cannot readily be expected that a people who are labouring under such stress would easily turn their minds to constitutional issues such as the appointment of the head of state and the transformation to a republican form of government.

The truth is that reasons and excuses can always be found for leadership not to embark on certain initiatives. For example, if a consensual approach had been adopted at the time of the financial crisis which gave rise to FINSAC, as a people, we would now be in a far better position to face the unprecedented economic challenges of today. The inappropriate excuse that was given by the then Opposition for 'not interfering or helping' amounted to 'you created the problem, you fix it'.

Again, when Prime Minister Patterson launched the values and attitudes initiative during the decade of the '90s, there was no cooperation from the then Opposition. In fact, it was stated by someone in the highest echelons of the Opposition that no cooperation would be forthcoming since, according to him, Patterson "did not have the moral authority" to lead such a charge.

With the necessary cooperation in such a culture changing enterprise, how much farther along the road towards a disciplined society we would now have been! It can hardly be doubted that Prime Minister Patterson has been the most accommodating leader of government that Jamaica has ever had. So that, if he did not have the moral authority to lead such a process, who then?

Further, the move towards the establishment of a social contract or social partnership was never truly embraced by the then Opposition. In fact, stakeholders met from time to time without their participation. Our journey, today, would not be as rocky as it is proving to be, had the collaboration route been adopted by them.

The outcomes from that short-sighted attitude to the conduct of public affairs now hang threa-teningly even over possible well-intentioned efforts in these times of global and national monetary trials and tribulations.

Referendum

So, the fact that we are in times of crisis should not be used as an excuse or reason for leadership to fail to pursue national goals that have long been agreed to be necessary for the development of our people.

The three main issues that have been recognised as necessary for the modernisation of our constitutional arrangements are the establishment of a republican form of government, the adoption of an up-to-date Charter of Rights and Freedoms, and de-linking from the London-based Judicial Committee of the Privy Council and subscribing to the Caribbean Court of Justice.
As far as our constitutional provisions are concerned, only the first - moving to become a republic - requires that a referendum be held. The holding of a referendum is, admittedly, a costly exercise. If, however, both political parties are agreed on the answer to be given to the question that is posed, the cost would be reduced to a minimum since campaigning would almost be non-existent.

In the case of the adoption of a new Charter of Rights, even though there are certain wrinkles that remain to be ironed out, all that is required is a two-thirds majority vote of all members of each House of Parliament.

Republican status

As far as subscribing to the Caribbean Court of Justice is concerned, there is no constitutional requirement for a referendum to be held, even though the party that forms the present government insists that such a course be taken. Again, if both parties are at one in moving in the direction of severing ties with the Privy Council, the referendum route need not be costly and, indeed, this question and that concerning the republican status could probably be put at the same time.

In any event, all that is necessary for Jamaica to subscribe fully to the Caribbean Court of Justice is a two-thirds majority vote of all the members of both Houses of Parliament, should the governing party choose to change course in this regard.

These are the kinds of efforts which serve to plant seeds of consensus, even in these unusual times, for the sustainable development of our country. Such tasks, of course, will not be easy; for these are times when people are concerned with survival and day-to- day living. Regardless, it is my view that we have no other choice than to find areas around which we may coalesce, if we are to emerge from this crisis with wholesome seeds having been planted and left to germinate in an environment of accommodation.

Three areas come immediately to mind. The first is fostering a culture of production. There are clear opportunities for local production to be enhanced. But there is an even wider and deep-rooted reason for a culture of production to be pushed. It fosters the kind of discipline that is required for the creation of the just society.

At the workplace, one cannot listen to talk radio and produce at the maximum; one cannot even produce with a passing grade with such interruption and distraction, and that is the kind of initiative that requires coaxing but which leads to cooperation, built upon an understanding that production and productivity constitute the underpinnings of personal and national development.
The second is inculcating into our people the habit of saving. One might be led to ask: how can we seek to embark upon such a project in times of financial trials and tribulation? This is precisely the time to begin, for it has to be demonstrated to our people that the habit of saving places us in a far better position to face the storms that will inevitably come upon us. The biblical story of Joseph in Egypt can go a far way in the development of part of the curriculum in schools which could assist in cementing the habit of saving as a part of the way of life of our people.

And the third opportunity comes, as I have said and will continue to project, in the form of steps that must be taken towards consensus building.

Global challenges

Jamaica has not, and could not have, escaped the prickles of the present global challenges, even though the impression had been given to the contrary by persons in high authority. After all, these are trials that the vast majority of the peoples of the planet have never encountered.

We do not wish that Jamaica should emerge from another crisis without lessons learnt. The success of nation states in tackling challenges of this sort is directly related to the approaches that are taken by the nation states themselves.

Those nation states in which bickering and proneness to confrontation constitute the guiding spirit will fail - as they usually do - to grasp the opportunities that are presented, even in times of distress. Those countries in which a consensual approach is the norm, where give and take is the natural action and reaction, in which a culture of togetherness for survival and deve-lopment is firmly set, are likely to cross the hurdles successfully.

One thing is sure, we are called to see these times as signals for searching after opportunities, personally and collectively, and searching for the silver lining.

A.J. Nicholson is opposition spokesman on justice.

Accept the Caribbean Court of Justice

A-G: Accept CCJ
Source: Nation News
Published on: 1/25/09.
by TREVOR YEARWOOD

ATTORNEY-GENERAL Freundel Stuart wants Caribbean Community (CARICOM) nations to hurry up and accept the Caribbean Court of Justice (CCJ) as the court of "last resort" on all matters.

Stuart said only Barbados and Guyana had accepted the CCJ as the final Court of Appeal instead of the Judicial Committee of Britain's Privy Council.

On the other hand, 12 CARICOM countries subscribe to the CCJ as the only body with responsibility to interpret and apply the provisions of the Treaty of Chaguaramas that set up CARICOM – and so settle trade and other disputes in the community.

Stuart, who is also Deputy Prime Minister, indicated that he wanted all CARICOM member countries to send a clear signal that they believe "justice can be delivered in the Caribbean at the same level and at the same quality" as through the Privy Council.

Stuart was at the time defending the Government against charges that it was "anti-integration" and dragging its feet on the CARICOM Single Market and Economy (CSME).

He dismissed the charges, saying: "There is no political party in the entire Caribbean and no country in the entire Caribbean that has given more to the regional integration movement than the Democratic labour Party as a party or than Barbados as a country."

Stuart said it was Barbados and Guyana who were "at the forefront of keeping the Caribbean Court of Justice alive".

While they were doing this, other countries were criticising Barbados but demonstrating that they believed their former colonial masters "are the best people to decide what is just and what is unjust for them".

He added: "They have no confidence in the people of the Caribbean. So I don't mind the talk . . . . When they demonstrate that they are committed to Caribbean people and to Caribbean values, when they demonstrate that they believe that justice can be delivered in the Caribbean at the same level and at the same quality as it was in the former mother country where the colonial masters reside, that is when most of them will qualify for my respect."

Stuart also questioned the readiness of some leaders for the CSME.

"If you are still at a stage where you do not trust your own people to dispense justice, to interpret your law, (to ensure) that justice can be done to your citizens, can you tell me that you are ready for a Caribbean Single Market and Economy?" he asked.

"You can't be ready. If you still believe that your former colonial masters have values higher than the people you want to lead, you cannot be serious about any Caribbean Single Market and Economy."

The CCJ was established in February 2001 and inaugurated on April 16, 2005.
Antigua and Barbuda, Barbados, Belize, Grenada, Guyana, Jamaica, St Kitts-Nevis, St Lucia, Suriname, and Trinidad and Tobago were the states which originally signed on to the agreement, followed by Dominica and St Vincent and the Grenadines two years later.

CCJ 4 Years Later

Fourth year since CCJ inaugurated and court still being grossly under utilised
Source: Caribbean Net News
Published on Monday, January 19, 2009
Print Version
By Oscar Ramjeet

It is interesting to read that CARICOM Secretary General, Edwin Carrington has called on regional leaders to accept the Caribbean Court of Justice (CCJ) as the final court.

Carrington made reference to the statement made by Trinidad and Tobago Attorney General, Brigid Annisette-George that only the Caribbean and Mauritius still retained the Privy Council as the final court, as well as the comments made by former St Lucia Prime Minister Kenny Anthony that "countries in the forefront of decolonisation process could now find undisguised comfort in retaining the Privy Council".

I wish to point out that Anthony was Head of Government in April 2005 when the Court was established and was in office until December 2006, for about 20 months and St Lucia had not joined the Court and still has not done so.

We have entered into another year -- the fourth year since the CCJ was inaugurated -- and no other country has joined Guyana and Barbados to accept the CCJ as the final court in the region. It is very disturbing and distressing that there is no indication that any other country will join in the near future.

What is even worrying is that the Jamaica Labour Party (JLP) administration 20 years ago was in the forefront of the establishment of the CCJ, and now that administration under a new Prime Minister, Bruce Golding, which is back in power after 15 years, is no longer interested.

Trinidad and Tobago was also advocating for the Court. In fact that is the reason why the Court is now headquartered in Port of Spain, and now the twin-island Republic has not taken any positive action to abolish appeals to the Privy Council.

But although the countries like Antigua and Barbuda, Bahamas, Belize, Grenada, Dominica, Jamaica, Trinidad and Tobago, St Kitts and Nevis, St Lucia, and St Vincent and the Grenadines have not taken steps to rid the Privy Council as the final court, they could still use the CCJ in its original jurisdiction to resolve disputes between Caribbean countries that are parties to the revised Treaty of Chaguaramas, as well as international law issues, but they are not even doing this.

Since the Court was established in April 2005, 45 months ago, only two CSME matters were filed.

In fact the decision in the first matter filed by a Trinidad company against Guyana was given on Thursday.

The CCJ has recently taken steps to launch a series of public education initiatives to enhance the knowledge of the Bar and Bench in the region and to invite business, labour and members of the public to be part of the exercise. Lectures were so far held in Jamaica and Antigua and Barbuda.

It is now worrying and opposition politicians in Trinidad and Tobago, including former Attorney General, Ramesh Lawrence Maharaj, are advocating that the Court be closed because of the high operational costs, not only because of the highly paid judges, but the maintenance of the highly technical and modern Court facilities as well as the administrative and support staff.

It seems that both the government as well as the opposition have to agree to abolish appeals to the Privy Council because of the constitutional changes, and that may well be one of the reasons, but perhaps I should point out that several governments have changed since the establishment of the CCJ, including St Lucia, Bahamas, Jamaica, Belize, Grenada, but the situation remains the same. Barbados and the British Virgin Islands also have new governments, but Barbados has already joined and the BVI is a British Overseas Territory and is not a signatory to the CCJ.

Since only two of the twelve countries -- Guyana and Barbados -- have accepted the CCJ as the final appellate court, the CCJ is grossly under utilised and this is very unfortunate since it gives them little scope to develop a Caribbean jurisprudence, which I have no doubt that they are eager to do.

There was some concern in the past that the CCJ was in favour of the death penalty as opposed to the London-based Privy Council, but a recent decision by the CCJ has dispelled the fear that it was a "hanging court" as contended in some quarters, since the regional Court has demonstrated that it will look at each case on its merits.

In any event, the Jamaican Parliament recently passed a motion by a wide majority to retain the death penalty, and St Kitts recently carried out an execution.

Dr Oswald Harding, former Attorney General of Jamaica, said that he was not in favour of the composition of the CCJ and expressed concern that no Jamaican has been named as a judge, although eight highly qualified persons applied for a position. He pointed out that Jamaica has the largest population in the English-speaking Caribbean, with a figure of 2.5 million. In a more humorous vein, he said that this was like selecting a West Indies cricket team without a Jamaican.

I have time and time again advocated that CARICOM Secretariat recruit a lobbyist to try to woo both the governments and opposition to take steps to rid appeals to the Privy Council, and they should do so as quickly as possible.

Carrington's statement is not enough; CARICOM should go further and take steps to approach governments as well as opposition parties to do so.

The Heads of Government have mandated the Ministers of Finance to provide funding for the recurrent expenses of the Court for the first five years of its operation. The question is -- what happens after April 16, 2010, the expiration of the five-year period?

CCJ Delivers Historic Judgment Under its Original Jurisdiction

TCL, subsidiary granted special leave to sue Guyana over cement tariff
Source: Stabroek News

Published: January 16, 2009 in News

In a historic first judgment delivered in its original jurisdiction, the Caribbean Court of Justice (CCJ) yesterday granted special leave to two cement companies to sue Guyana over what they said was the “unilateral” suspension of the Common External Tariff (CET) on cement.

The issue of whether Trinidad Cement Ltd (TCL) and TCL Guyana Incorporated (TGI) qualified as candidates for special leave to bring proceedings before the CCJ went to the core of the court’s jurisdiction, which in addition to being the highest appellate court in the region, also exercises an original jurisdiction by interpreting and applying the treaty which establishes the Caribbean Single Market and Economy (CSME).

TCL and TGI had accused the Guyana government of breaching the Revised Treaty of Chaguaramas by unilaterally suspending the CET on cement imported from countries outside of Caricom and sought to obtain special leave from the CCJ to sue Guyana. However, the two companies first had to satisfy certain conditions. They had to establish that they were “persons, natural or judicial, of a Contracting Party”.

Caricom member states who are contracting parties may bring proceedings before the CCJ, but for a person or company to bring proceedings before the court in its original jurisdiction, the party has to get permission from the CCJ, in addition to satisfying the required conditions.

On this issue, according to an executive summary of the judgment, the CCJ panel of judges ruled that the incorporation of a company in a Caricom state (which is a party to the treaty) is enough to qualify the company as a candidate for special leave to bring proceedings. It also ruled that an individual or a company may possibly approach the CCJ to seek relief against the state of which he is a national or any other Caricom state, which is a contracting party.

The CCJ panel of judges presiding in the case comprised, President of the court, Justice Michael De La Bastide and Justices Rolston Nelson, Duke Pollard, Adrian Saunders, Desiree Bernard, Jacob Wit and David Hayton.

In the judgment on whether a national of a state party to the treaty can bring an action, the court said it rejected a literal interpretation of the relevant article, Article 222 of the Treaty and took into consideration the policy and objectives of the Treaty as disclosed both in its preamble and its substantive provisions. In the judgment, the Court held that it is possible for an individual or a company to seek relief from the CCJ for breach of a Treaty obligation undertaken by a state whether or not that individual or company is a national of the offending state.

The CCJ also held that on the material facts placed before it the applicants had established at least an arguable case that other requirements for special leave had been satisfied, but emphasized that it was making no “definite finding on those issues which the ultimate success or failure of the proceedings might turn” since the ruling has now cleared the way for the substantive arguments in the case to be heard.

Regional submissions

The CCJ had invited all contracting parties and Caricom to make submissions on the issues before it, that is, whether under Article 222 of the Treaty of Chaguaramas, which pertains to the locus standi of private entities, it is sufficient for a company to be incorporated or registered under the domestic legislation of a contracting party.Secondly, the court also sought submissions on whether Article 222 accords one who is held to be a person, natural or juridical, of a contracting party the right to sue that contracting party.

The court said yesterday that it received submissions from Caricom, Barbados, Jamaica, Trinidad and Tobago and St. Vincent and the Grenadines. Notices for submissions were sent out last July to contracting countries except Guyana.

Originating application

TCL, a limited liability company incorporated under the laws of Trinidad and Tobago and registered as an external company under the laws of Guyana, and TGI, a limited liability company incorporated under the laws of Guyana in which TCL is the major shareholder sought special leave to file an originating application claiming compensation from/and or injunctive relief against the State of Guyana over the non-application of the CET on cement.

Guyana was represented by Attorney General Doodnauth Singh. While the State of Trinidad and Tobago was entitled to appear and was served with a copy of the proceedings it indicated via counsel at the case management conference preceding the hearing that it merely wished to observe the proceedings. The originating application was filed on April 3, 2008 by the Law Offices of Dr Claude Denbow, SC.

Alleged a breachTCL and TGI alleged a breach by Guyana of the provisions of Article 82 of the revised treaty under which Guyana is obliged to establish and maintain a Common External Tariff (CET) on cement imported into Guyana from outside of Caricom. The CET is incorporated into the laws of Guyana.

According to their submission, TCL and TGI alleged that Guyana is required to establish and maintain a CET in respect of all goods which do not qualify for community treatment in accordance with plans and schedules set out in the relevant determinations of Caricom’s Council for Trade and Economic Development (COTED); that the CET on cement is imposed at the rate of 15% on imports of cement from third states as reflected in the First Schedule of the Guyana Customs Act Chapter 82:01; that the imposition of the CET on imports of cement into Guyana extra-regionally is of great commercial benefit to them because of the protection afforded to their products; and that when the CET is imposed TCL and TGI enjoy a competitive advantage over imports which do not qualify for community treatment in accordance with the treaty.

Though they confined their allegations of not enjoying such a competitive advantage to the period from January 2007 and continuing even though the suspension of the CET commenced before January 2007, they said that at present they do not enjoy such a competitive advantage because of the decision of the Guyana government to suspend the implementation of the CET.

TCL and TGI alleged too that the revised treaty provides for COTED to authorise an alteration or suspension of the CET by a member state but the government sought no permission for this but Guyana was allowing the importation of cement from extra-regional sources without paying the CET as mandated by the relevant provisions of the revised treaty.

The two cement companies contended that they fulfilled all the relevant criteria for obtaining special leave “as Guyana has breached a provision of the revised treaty intended to enure to their benefit directly and that they are prejudiced by the breach.”As “nationals” of both Trinidad and Tobago (T&T) and Guyana, they alleged that the government of both countries declined or refused to espouse their claim and as such they sought special leave to seek redress from the CCJ.

On the other hand, Guyana admitted that the country suspended the implementation of the CET on cement and that COTED had not authorised any suspension in respect of the relevant period. The suspension was justified, he submitted, by the critical shortage of the commodity Guyana faced in view of its urgent developmental needs as a “disadvantaged community” in keeping with Article 1 of the revised treaty.

Attorney general Singh submitted that TCL and TGI were guilty of abusing their dominant position in the market and the court needed to protect consumers within Caricom; and that throughout Caricom there were complaints about the inability of TCL to supply the Caribbean market and in the period between 2001 – 2007 CET waivers were sought and obtained from COTED by Suriname, T&T, Jamaica and the member countries of the Organisation of Eastern Caribbean States (OECS).

He argued that the right to institute proceedings before the court was a right peculiarly vested in “State Parties” and that judicial review in municipal proceedings would have been the more appropriate course for TCL and TGI to take; and that the bringing of proceedings by one state against the other under the revised treaty may have serious political implications for the continuation and future of Caricom because the revised treaty intends that contracting parties operate as joint partners in Caricom and the CSME and only in the event of a breach of community obligations of the greatest magnitude was it foreseeable that such proceedings would be contemplated by one state against another.

He argued, too, that the applicants must prove that they are “nationals” in terms of the revised treaty, which requires eight different conditions to be met and that the applicants had not met them.

Lastly he argued that the obligation to implement the CET pursuant to Article 82 of the revised treaty does not yield any benefit to TCL and TGI “nor do they accrue any right.” Since no right or benefit accrues to the applicants, he argued that they are ineligible for special leave more so as no casual link was established between the applicants alleged loss and the failure on the part of Guyana to implement the CET.The CCJ has delivered over 20 judgments in its appellate jurisdiction.

DRF ( Jamaica) to provide services to CCJ and CARICOM

Dispute Resolution Foundation to Celebrate 15-Year Anniversary
KINGSTON (JIS):Thursday, January 08, 2009

Source: Jamaica Information Service - JIS

Several activities have been planned to mark the Dispute Resolution Foundation's (DRF) 15th anniversary this year, which has also been proclaimed National Year for Dispute Resolution.

The activities include the launch of parish exhibitions and a schools' competition; Alternative Dispute Resolution (ADR) workshops for sports and entertainment leaders; a one-day conference for tourism leaders; a gala awards function in July; a heroes of peace family fun day and concert in October, and a thanksgiving service in December. Several parish mediation, and peace and justice centre visits are also scheduled to take place.

Details of the events were unveiled during a DRF media briefing at the Courtleigh Hotel in Kingston on Wednesday (Jan. 7).

Board member of the DRF, John Bassie said this year, the DRF will also be placing emphasis on enhancing the delivery of court and commercial mediation services under Part 74 of the Supreme Court Civil Procedure Rules, which provides for most civil cases listed for trial in the High Court, to be automatically referred to mediation, once the first defence is filed. A mediator is either selected from a designated roster within 35 days, or one is appointed by the DRF, and a date, thereafter, set for the parties involved to meet. Attorneys and clients duly authorised to settle the matter, are required to attend and endeavour to reach a settlement.

Other activities scheduled for roll out, Mr. Bassie disclosed, are the publication of a seminal study on the attitudes, concepts, and prevalence of conflicts, and violence reduction initiatives in some 30 schools; and the institution of a number of community-based justice programmes and service, in partnership with the Ministry of Justice.

Regionally, Mr. Bassie said plans are also being made to consolidate work and partnerships established with fellow stakeholders in Belize, Guyana, Trinidad and Tobago, Barbados, Bahamas, and the Organisation of Eastern Caribbean States (OECS). He further advised that the Foundation will seek to establish formal relationships with the Caribbean Community (CARICOM), to provide services to the CARICOM Single Market and Economy (CSME), the Caribbean Court of Justice, as well as in matters pertaining to the Economic Partnership Agreement (EPA).

Noting security, violence, and governance; and business disputes arising from global and local economic developments, as the two main challenges which Jamaica will have to contend with during 2009, the DRF director said that in addressing these matters, there will be need to strengthen existing partnerships, and establish new ones with several key stakeholders. These include: the Ministry of Justice; the Caribbean chapter of the Chartered Institute of Arbitrators; private corporations; international development partners; communities; and young people.
Chairman of the DRF, Novar McDonald, who also addressed 0the briefing, noted several significant achievements, which the organisation has attained during its 15 years. These, he pointed out, include: the establishment of 16 service points across the island to deal with disputes arising in communities; implementation of dispute resolution initiatives in some 30 target schools in Kingston and St. Andrew, St. Catherine, and St. James; implementation of the school suspension programme, which aims to provide youngsters who have been suspended from school with the necessary support and channels through which they can discuss matters contributing to the disruption in their attending school, while ensuring that they are in good stead with their academics.

Other achievements, which the Chairman highlighted, include a 61 per cent success rate in the cases in which the DRF has mediated, and extensive training programmes undertaken in the wider Caribbean.

Counsellor, and Head of Development Cooperation at the Canadian Agency for International Development (CIDA), one of the DRF's key partners, Lorriane Belisle, noted that both organisations have had a long-standing relationship through the Foundation's work funded by CIDA. Some of these activities include: training of correctional officers and inmates at the Tower Street Correctional Centre, and South Camp Rehab Centre in Kingston, in dispute resolution in the 1990s; design and delivery of several initiatives under the Social Conflict and Legal Reform Project, inclusive of: the establishment of community Peace and Justice Centres in Trench Town, Kingston, and Flankers, Montego Bay, St. James; and development of a Restorative Justice Policy for Jamaica.

"CIDA is committed to supporting the Government of Jamaica's justice reform agenda, and values the DRF's role as a key partner in these reforms, based on its track record of high quality, appropriate, and innovative services," Mrs. Belisle said.

The DRF was also presented with a cheque for $200,000 by Manager of Corporate and Regulatory Affairs at Carreras Limited, Rhys Campbell, which will go towards enhancing the work and activities being undertaken at the Spanish Town Peace and Justice Centre.
On Tuesday (Jan. 6), Governor-General, His Excellency, the Most Hon. Professor Sir Kenneth Hall, declared 2009 as the National Year of Dispute Resolution, during a ceremony at King's House.