Rationalize Public Justice System

Published: Sunday, October 18, 2009

Source: Jamaica Gleaner

The prime minister has indicated that he is prepared to reconsider the issue of the Caribbean Court of Justice (CCJ) as our final Court of Appeal. As you will recall, the Jamaica Labour Party (JLP) so strongly objected to the legislation passed by Parliament abolishing the Privy Council as our final Court of Appeal and substituting the CCJ that they brought a legal action to nullify the legislation, and eventually succeeded in so doing by a judgement of the Privy Council itself, which overruled the local court of appeal.

In effect, the result of the judgement is that this substitution cannot take place unless there is parliamentary support to the extent of a two thirds favourable vote in each Chamber. In practice, this means that there has to be co-operation between the two major political parties.

I would suggest that the prime minister begin his consideration by consulting with the Speaker of the House of Representatives, Delroy Chuck and the president of the Senate, Senator Oswald Harding. I mention this starting point for the reasons set out below.

In 1988 Senator Harding, who was then attorney general , brought to the Cabinet , and obtained its approval for, a proposal to abolish appeals to the Privy Council and substitute as our final appellate body a regional court which we now know as the Caribbean Court of Justice. This proposal also had the support of the People's National Party which was then the Opposition in Parliament. In 1989 there was a general election which returned the People's National Party as the majority and hence that party became the Government and the Jamaica Labour Party became the Opposition. When the Government of Jamaica subsequently signed a treaty with its CARICOM partners establishing the CCJ with both an original and an appellate jurisdiction and introduced legislation to constitute the appellate division as our final Court of Appeal in place of the Privy Council, the JLP then announced that they would not support this legislation but would oppose it, both in Parliament and, if necessary, in the courts.

'Indicative referendum'

The stated ground of their objection was their contention that there should be an 'indicative referendum' beforehand to determine whether the Jamaican people wished the substitution to take place. The People's National Party government objected to this proposal on the ground that the result of such a referendum would not be binding, and would constitute an unnecessary and unwarranted expenditure, since it would cost the Government almost as much as a general election if it were to be properly conducted.

Instead, the Government suggested to the Opposition that the proper course would be to pass the legislation in Parliament, so that the CCJ would then become included in the Constitution. It would then be entrenched by amending Section 49 of the Constitution so as to make Section 110 one of the entrenched sections. Since Section 49 is a deeply entrenched Section, this amendment would require the legislation, after it had been passed by Parliament, to be submitted to the electorate in a referendum for approval before it could become law.

The avowed interest of the Opposition in seeing that there was majority approval of the electorate before this change could take place would be satisfied in a conclusive and binding way. This proposal by the Government, however, was not accepted by the Opposition and the events culminating in the above-mentioned ruling of the Privy Council ensued.

In an attempt to break the resulting stalemate the then Attorney General, Senator A.J. Nicholson, arranged a series of meetings between himself and his team with the relevant Opposition spokespersons Delroy Chuck and Senator Dorothy Lightbourne. These meetings resulted in an agreement, with Chuck at any rate, on a procedure which would satisfy the requirements of the Privy Council decision, the interests of the Opposition Labour Party in obtaining the approval of the general electorate prior to the changeover coming into effect, and the desire of the Government to have this change effected in the national interest and in accordance with the provisions of the Treaty, into which Jamaica had entered with its CARICOM partners, and which, in fact, imposed a financial obligation on Jamaica, since the CCJ in its original jurisdiction is fully in existence and is being paid for by all the CARICOM countries including Jamaica.

Notwithstanding the foregoing, the Jamaica Labour Party after winning the general election in 2007, has taken no step to implement the agreement which appeared to have been reached during the meetings with Chuck referred to above.

No ideological difference

It is apparent from the history of this matter that there is no philosophical or ideological difference between the two parties with respect to the desirability of taking the final step to achieving our complete independence from the erstwhile colonial power by removing our final Court of Appeal from its location in London to the Caribbean. It may be noted in passing that the CCJ, though headquartered in Trinidad, will, in the exercise of its appellate jurisdiction, sit in Jamaica to hear appeals from the Jamaican Court of Appeal.

There can also be no doubt that the Caribbean region is perfectly capable of producing jurists of the same calibre of competence and integrity as admittedly exists with the Privy Council, but with the inestimable benefit of having our own laws and our own Constitution interpreted and applied by a judiciary chosen by a process that we have fashioned for ourselves and which guarantees the independence of the judges collectively and individually from any form of political manipulation.

Multitude of difficulties

Finally, added urgency has been given to resolving this issue by the reforms that are taking place in the judicial system in the United Kingdom, which is bound to have an effect on the way in which persons are selected to be members of the panels that constitute the Judicial Committee of the Privy Council and the obvious desire expressed by Lord Phillips to release English appellate judges from the burden of having to deal with cases that have nothing to do with the people of their own country.

Notwithstanding the multitude of difficulties that we all realise the prime minister and his Government face at this time, I would urge him and his colleagues to recognise the importance of rationalising our judicial system and completing the process of our independence.

We will, in the not too distant future, I trust, be bringing our own Constitution, as a whole, up to date. It is vital that, when this process takes place, the validity of what we do will be determined by a final court of our own region and not by one that is a relic of our colonial heritage.

David H. Coore, an attorney-at-law, is a life member of the People's National Party (PNP)

Letter: Complaint against the Hon Mr Justice Saunders Source: CaribbeanNet News
Published on Wednesday, October 14, 2009
The Sir: I write in response to the letters to Caribbean Net News by a “Linda McDowald” and by a “Marcia Wilson” respectively. These letters have unfairly called into question the integrity and impartiality of the Honourable Mr Justice Adrian Saunders as well as of the Caribbean Court of Justice by alleging that the judge was on a political campaign in St Vincent and the Grenadines “for a yes vote for [the CCJ] and the Constitution of St. Vincent”. The only basis which Ms McDowald gives for this suggestion is that Mr Justice Saunders, at the invitation of the Constitution Reform Committee and the House of Parliament of St Vincent and the Grenadines, submitted a Memorandum to the Speaker of the House setting forth his detailed views on the draft Constitution of that country. Mr Justice Saunders did indeed make such a submission to the St Vincent and the Grenadines House of Assembly. He did so as a citizen of that country and he was fully entitled so to comment in the manner that he did. There is therefore absolutely no basis for the imputations that have been made against him or the Court in either of the letters. It was entirely appropriate for Mr Justice Saunders to share his expert views on the draft. Accordingly, the idea that the integrity or impartiality of either the Judge or the Court on this account has been compromised must be firmly rejected. Michael Anthony Lilla Court Protocol & Information Officer

Regional heads concerned over link between CCJ Trust Fund and TCL

Source : Stabroek News Paper

October 13, 2009 | 5 Comments

President Bharrat Jagdeo yesterday declined to offer details on the legal dispute involving Guyana and Trinidad Cement Limited (TCL) but he disclosed that regional leaders are concerned over what they see as a conflict of interest between the Caribbean Court of Justice (CCJ) Trust Fund and the cement company.

The President pointed to a relationship between the Chief Executive Officer of TCL and the regional court’s trust fund saying that the CEO of the company also chairs the Trust Fund of the CCJ. This, he said, was discussed in caucus during the Caricom Heads of Government meeting held here in August, noting concerns were raised.

Dr. Michael Anthony Lilla, the CCJ’s Protocol & Information Officer informed this newspaper when contacted yesterday that he was advised the court may not comment on the President’s statement.

President Jagdeo spoke on the TCL issue briefly during a press conference yesterday at the International Confer-ence Centre, Liliendaal.

He then made the disclosure saying regional leaders were concerned about the conflict of interest that existed between “the person who chairs the CCJ Trust Fund and who came into regular contact with the court [and] is also the CEO of TCL”. He said also that TCL’s move to the CCJ was seen as a conflict of interest by the regional heads meeting in Guyana, adding “the heads concluded that this is conflict of interest”.

Guyana’s position as it regards the Common External Tariff (CET) on cement has not changed based on the President’s statement yesterday; he told reporters that government has initiated a process with Caricom, which is that they have asked for a certain course of action. The course of action to which the President hinted is that Guyana has sought a waiver from the regional Council for Trade and Economic Development (COTED), which is yet to officially respond.

According to Jagdeo, a decision was taken sometime ago by regional heads that they remove the CET from all goods that achieve international competitiveness. “As far as I am concerned, cement has achieved this”, the President said, before charging that TCL has been duplicitous.

He stated that TCL continues to argue it can supply the local market yet in other bilateral discussions it has agreed that other countries can import cement.

The President refused to take any further questions on the issue when pressed saying that the matter is currently before the courts.

Trinidad Cement Limited (TCL) and subsidiary TCL Guyana Inc. (TGI) recently filed an application at the CCJ against the Guyana Government asking the CCJ to hold this country in contempt of court after Guyana failed to reinstate the CET on cement as ordered by the court in an August ruling.

The TCL Group had stated that this failure to abide by and implement the ruling of the CCJ was “a flagrant departure from the rule of law, (and) “it also negatively impacts upon the public’s confidence and respect for the court.”

However, Attorney General Charles Ramson rebutted in a statement that there had never been disregard for the law. Ramson also noted that there were extenuating circumstances as regional cement suppliers, including the plaintiff, could not meet the needs of Guyana’s booming construction industry.

Ramson said too that government has always tried to remain within the confines of the law and had filed on June 30, before the court’s earlier ruling, an application with the Council for Trade and Economic Development (COTED), the body that rules on intra-regional trade matters, seeking a waiver of the CET on imports of cement from non-CARICOM countries. Guyana had suspended the CET on cement since 2006 without making the relevant application to COTED.

LORD GIFFORD URGES QUICK REFERENDUM ON CCJ

Source: Jamaica Observer

Tuesday, October 13, 2009

Renowned human rights lawyer Lord Anthony Gifford has called for a referendum to be held quickly for Jamaicans to determine whether the Caribbean Court of Justice (CCJ) should become the country's final appellate court.

Lord Gifford, who practices in Jamaica and in the United Kingdom as a barrister, said the CCJ would be more accessible, affordable and provide a better quality of justice for Jamaicans and other former British colonies in the Caribbean than the Judicial Committee of the UK Privy Council, which currently serves as the final appellate court for criminal and civil matters.

Lord Gifford gave his views in the debate rekindled by Lord Nicholas Phillips, the president of the UK Supreme Court, who stated that the Law Lords on the Privy Council were spending a "disproportionate" amount of time on cases from former colonies, mostly in the Caribbean.

Gifford was speaking at a reception to mark the 800th anniversary of the University of Cambridge at the British High Commissioner's residence in Kingston last Thursday evening, two days after Prime Minister Bruce Golding told University of the West Indies students that his Government may now be willing to re-evaluate its position on the court.

Golding and his Jamaica Labour Party have always held that the matter of the CCJ should be put to a referendum.

On Thursday, Lord Gifford - pointing out that Lord Phillips was his closest friend when they studied together at Cambridge, and was best man at his first wedding - said: "I support my old friend and classmate, and hope his words will provide the stir to take Jamaica out of the Privy Council and into the Caribbean Court of Justice after a referendum of the Jamaican people in which both (political) parties would urge a 'yes' vote."

The veteran advocate said the CCJ would produce a better quality of justice than the Privy Council for a number of reasons, including that it consists of seven learned judges from different backgrounds; five from the Caribbean, and one each from the UK and The Netherlands respectively.

He said the CCJ will be accessible at reasonable cost to litigants, as cases are currently heard in Port-of-Spain, Trinidad, with the option to move around the region.

"No need for the litigants or his lawyers to get a visa," Lord Gifford quipped.

A recent CCJ judgement on appeal of a death penalty case in Barbados was cited, "drawing on human rights precedence to reach a just decision that saved the lives of two men".

Another advantage highlighted was the opportunity the CCJ will provide for the region's lawyers, "making it possible to make their name in pursuing a case to the highest court".

Gifford said that his arguments in support of the CCJ were practical and not about the Privy Council being a "colonial relic" or "composed of white foreigners".

Commentary: How realistic is it for the Caribbean to join the G20? Source: Caribbean Net News
Published on Monday, October 12, 2009
By Dr Isaac Newton and Debbie Douglas In the Caribbean, schisms have opened up over such pressing issues as immigration, foreign policy agendas, borrowing from the IMF, implementation of the Caribbean Court of Justice, viability of the Caribbean Single Market Economy, and leadership clarity over regional direction. More worrisome are: inadequate critical discussions on national and regional issues over the development of the region, preferred worldview that excellence is imported and things foreign are superior, and threats over sub-regional and regional splits on South American alliances. But excluded from serious public debates are priorities such as ecological security, fiscal scare, die-hard poverty and rising debt. The paradox is that year after year, the Caribbean spends wasteful resources on conferences that do not yield positive outcomes. Yet, in this climate, some conscientious political analysts and social scholars attempt to differentiate local realities from global trends. They are on a mission to decipher where points of intersection could help clarify, the key variables needed for the Caribbean to forge its own success pathway. Against this wider backdrop, former Antigua and Barbuda diplomat, Sir Ron Sanders has written two articles: “Can the Caribbean rely on the G20?" and "Who is listening when the Caribbean speaks?” We have read Sir Ron Sanders’ admirable endeavors to support Caribbean leaders by articulating why they should be given a place at the table where decisions that affect them, directly and indirectly, are made. Such places include the G20, the IMF, and the World Bank. We know that the Caribbean has played a significant historical role in providing resources that European countries and the USA used to catapult their societies into advanced economies. We are aware also that the Caribbean continues to advance ideals of democracy, with geographic strategic value for Europe and North America. From this angle, we resonate with Sanders’ righteous anger, for rallying against wrongheaded attitudes that arrogantly dismiss the Caribbean and arbitrarily victimizes poor regions. We particularly embrace Sanders’ enormous optimism, and praise his outstanding passion for envisioning the Caribbean as qualified to enter into the G20 circle. But we are aware of the dizzying nature of how unlikely his goals are to be attained. Added to that, is the unsentimental cost of the possibility of being slighted by the major powers of the world. There is a difference between a coconut tree and a lamp post-- both are firmly planted in the ground-- one has roots but the other does not. In the same way, Sanders’ desire may be exceedingly earnest but his declaration appears incredibly inaccurate. For the Caribbean to execute its lofty goal of achieving G20 status, it must be willing to put vital steps in place to get there. At best, Sanders’ articles contribute to our understanding of how geo-politics and ethics are deeply connected to our conceptions of sustainable development and identify. At worst, his ideas illustrate how the Caribbean itself, fails to create added value to penetrate world shaping institutions like the World Bank, the IMF and the G20. First, the G20 nations deliberately set up structures to protect self interests; they are not too much concerned with building bridges or even recognizing how their fate and the Caribbean’s destiny are interlinked. When shoring up their faltering economies, being charitable towards the Caribbean, is the last thing on their minds. Second, the very nature of G20 is discriminatory. It is designed for well developed and highly integrated economies both to support each other and to superimpose their collective financial agendas on the rest of the world. The Caribbean’s economies are too meager and far too insignificant to be considered worthy of inclusion. Third, although ‘a little leak can sink a big ship’, Caricom seems inept, to reverse president Jean Bertrand Aristide’s ousting, when outside powers, unseated a democratically elected leader, from amongst its rank. It took an African country to offer him a place of refuge. Fourth, until the Caribbean gets its strategic intelligence, market integration, immigration freedom, and innovative educational practices act together, our future seems dismal. Caribbean leaders must concentrate on internally derived development solutions, and on the capacity to ignite the genius of its people, both at home and abroad, to facilitate its growth. Since these dynamics are not in place, why should the most powerful countries in the world, listen to the Caribbean or take our issues seriously? The fact that so much is at stake, yet we continue to fight ever so often, over narrow terrain of resources and interests, knowing full well, that such infighting has dire consequences for our collective future, suggests that our moral compass is not set in the direction of self-empowerment. We have our internal work cut out for us, and maybe feelings of being flatly ignored, is a clarion call to explore possibilities for sustainable unity, which is essential for regional advancement. Perhaps the time to shift strategy and begin to rethink, how to fashion our destiny, from the inside out, while not dismissing the supreme value of finding relevant global partners, to harness mutually beneficial interests, has come. Sanders’ highly ambitious enterprise, and remarkably, in these difficult economic and social times, places the cart before the horse. Therefore, we read his unique advocacy, more as an investment in encouragement, than as a signature of regional readiness and achievement. The sentiments in his articles imply that our self-promoting agendas, (we can’t even get the China/Taiwan issue straight) that foster regional hierarchies and that work counter to the need to be critically conscious about the way forward, must be first clarified. Invisibly and thence consciously, until we nurture a strong sense of ‘regionhood,’ which is indissolubly tied to the power of representation, we will be left out of important decision making processes. Essentially, the Caribbean must find productive methods of listening to each other. We must speak with one voice by packaging indigenous issues in convincing frameworks to the G20, the World Bank and the IMF. This will increase our clout. There is plenty of merit for the Caribbean wanting to have its own representation in international gatherings. We can no longer simply react to policies. We must provide intelligent input to shape and implement them. But to have our concerns addressed realistically, depends on our perceived and real weight. For example, what are we bringing to the international table and how are we communicating added value? Do we have the leadership to build a sustainable regional economy to earn a place at the G20? Do we invite our most competent people to represent our views at the World Bank and the IMF? No one will listen to us, if we continue to be disunited and needy. In short, we have a lot of growing to do, before we develop the capital to get the deference and high regard needed to wield influence on the global landscape. We wonder, what will quicken in our souls, given how far from the G20 mark we are, for us to realize that seven requests, of wanting to be included, do not an invitation make? Ultimately, the Caribbean needs to cultivate a robust self-confidence to excel at prosperity-generating ideas. We must also learn to model a quest for excellence through virtues of mutual affirmation, cultural creativity, justice and fairness, critique and rejuvenation. In essence, the Caribbean must find strategies to ensure that its place in the global-mix is not compromised. Preserving our best cultural features, should involve arresting the attention of global players, in our pursuit of ambitious exploits. While some amongst us are worrying about the big questions—like, ‘How to develop the Caribbean as a major world force?’ Caribbean leaders have smaller concerns to tackle—‘How to harness and unify the Caribbean’s best energies (human and natural) for its own survival? Perhaps we must earn inclusion, before we demand it. We need to unite, define our regional interests, build our economies to attain G20 status, and carve out a strategy that advances our needs/wants effectively, to rightly gain the possibility of a place at the table. Dr Isaac Newton, an international leadership and management consultant, is a graduate of Harvard, Princeton and Columbia, and Debbie Douglas, a legal analyst and government relations consultant, is a graduate of McGill University, Stockholm University and University of London.

CCJ to hear first contempt of court application

Source: 360 Caribbean

Published :October 7, 2009

Trinidad Cement Limited (TCL) is heading back to court over its dispute with Guyana. But this time, in the first such application made to the Caribbean Court of Justice (CCJ), the cement manufacturer wants Guyana to be held in contempt for not complying with the court's order that it reinstate the Common External Tariff (CET) on cement imported from outside the Caribbean Community (CARICOM).

TCL and its subsidiary, TCL Guyana Inc, filed the application yesterday.

After finding Guyana in breach of the Revised Treaty of Chaguaramas, after the country failed to apply the CET on cement imported from outside the region, the CCJ on August 20th gave the Bharrat Jagdeo government 28 days to re-establish it. But TCL said the deadline had come and gone without Guyana taking any steps to comply with the ruling.

TCL said that while Guyana made an application to CARICOM for a waiver of the CET, that request was turned down before the deadline given by the CCJ.

"The time for compliance with the order of the court also expired on September 17, and Guyana has not taken any steps to act in accordance with the ruling of the CCJ," a statement from the cement company said.

"TCL views this failure to abide by and implement the ruling of the CCJ as a flagrant departure from the rule of the law. It also negatively impacts upon the public's confidence and respect for the court. It is hoped that Guyana will remedy this state of affairs expeditiously, and the CET on imported cement into that country be immediately re-established," it added.

TCL has asked the court to summon Guyana's Attorney General of Guyana, Charles Ramson, to give evidence and show cause why he should not be held in contempt of court for failing to obey the CCJ's order.

When the ruling was handed down in August, Ramson said that Guyana was "prepared to obey the order of the court".

The CET is a rate of duty applied by all CARICOM member states to products imported from outside that grouping. Although it may be altered or suspended on an item in circumstances where a product is not produced in CARICOM, the quality of the item produced regionally does not satisfy demand, or the quality of the CARICOM-made product is below standard, countries cannot unilaterally make any change.

Request for suspensions of alterations to the CET must be channeled through the Community's Council for Trade and Economic Development (COTED) for approval by the CARICOM Secretary General.

Jamaica rethinks opposition to CCJ

Source: Caribbean360.com

Published: October 8, 2009

The Jamaica Labour Party (JLP) government, which has up to now not supported signing on to the Caribbean Court of Justice (CCJ), seems to be softening its position.

Prime Minister Bruce Golding says his administration is contemplating re-evaluating its position on the regional court.

Prime Minister Golding said that a number of changes have been made to the court since his JLP and others raised concerns about it and the time may be now for his government to rethink its position.

"I think we are in a position now, where we can do a revaluation of that now. I put it no stronger than that. But, I think we are now in a position where that proposal can be re-evaluated," he said.

Golding explained that the JLP had reservations about the original concept of the court, including having CARICOM political leaders appoint the judges, as well as the possibility of the CCJ becoming hostage because of lack of finances.

He said that the JLP government also needed to see the court function, in order to evaluate its jurisprudential quality.

But Golding said that the Jamaica government was satisfied with the appointment of a judicial commission to appoint the judges, as well as the setting up of a trust fund to finance the court and felt that, in terms of the performance of the court, a re-evaluation was possible.

The debate over the lack of support for the CCJ was renewed in recent weeks after British jurist Lord Phillips, days before he took up the post of the president of the British Supreme Court this month, complained that he and senior justices spend a "disproportionate" amount of time hearing legal appeals from independent countries from the Caribbean and other Commonwealth countries.

The CCJ has both an original and appellate jurisdiction, but while most CARICOM countries are members of the original jurisdiction, only Barbados and Guyana have signed on to the appellate jurisdiction.

PM Says Government May Re-evaluate CCJ

Source: KINGSTON (JIS): Wednesday, October 07, 2009

The Prime Minister, the Hon. Bruce Golding, indicated last night that the Government may be contemplating re-evaluating its position on the Caribbean Court of Justice (CCJ).

Mr. Golding told last night's Town Hall Meeting in the assembly hall of the University of the West Indies(UWI), Mona, that a number of changes had been made to the Court, since his Jamaica Labour Party (JLP) and other regional groups raised concerns.

"I think we are in a position now, where we can do a revaluation of that now. I put it no stronger than that. But, I think we are now in a position where that proposal can be re-evaluated," he said.

He explained that the JLP had reservations about the original concept of the Court, including having CARICOM political leaders appoint the judges, as well as the possibility of the Court becoming hostage because of lack of finances. He said that the JLP also needed to see the court function, in order to evaluate its jurisprudential quality.

Mr. Golding said that the Government was satisfied with the appointment of a judicial commission to appoint the judges, as well as the setting up of a trust fund to finance the Court and felt that, in terms of the performance of the court, a re-evaluation was possible.

AG 'may limit' appeal cases to Privy Council

Source: Tribune : www.tribunemedia.net

THE Attorney General's Office is considering limiting the number of appeal cases sent from the Bahamas to the Privy Council in response to comments made by a leading UK judge over the "disproportionate" amount of time the body spends hearing cases from former colonies.

Brent Symonette, Minister of Foreign Affairs and Attorney General, said his office is looking into the implications stemming from the recent remarks by Lord Nicholas Phillips, president of the UK's new Supreme Court.

"As a result of Lord Phillips' ruling, the AG's office is looking at the implications of the ruling and no doubt in short order I will be having discussions with the Prime Minister and my Cabinet colleagues as to the way forward," he said.

It is unclear whether Government will seriously consider splitting from the UK Privy Council in favour of having its final appeal cases heard by the Caribbean Court of Justice (CCJ) -- the only regional alternative to the UK court, or create another final appellate court.

When asked if there would be any constitutional changes if the Bahamas were to leave the Privy Council and sign on to the CCJ, Mr Symonette said: "I don't want to add more to it than I've already done. We'll look at it to see the implications of Lord Phillips (statements) regarding current matters before the Privy Council.

"It may be that one course of action may be to limit the (number of) appeals from the Court of Appeal to the Privy Council -- that might be an alternative."

Although the CCJ was established in 2001, there has been resistance by many countries in the region to use it as a final court of appeal. Currently the CCJ only adjudicates cases from Barbados and Guyana.

Former Attorney General Alfred Sears recently said the country should quickly divorce itself from the Privy Council in favour of the CCJ, claiming that as part of CARICOM the Bahamas has made financial contributions to the judicial body.

When asked to disclose what, if any, financial assistance the Bahamas has given the CCJ, Mr Symonette said he did not know those figures off-hand.

Speaking to The Financial Times newspaper recently, Lord Phillips said he is looking for ways to reduce the "disproportionate" amount of time judges who staff the Privy Council also spend on cases coming from outside the UK, mostly on cases from former colonies.

He also questioned whether some Privy Council cases, which have ranged from Jamaican death row appeals to fights over press freedom in Bermuda, needed to be heard by a panel of five of Britain's most senior judges.

His comments sent shockwaves throughout the region and were seen by legal experts as a warning that Britain might take steps to shake off the colonial hangover the institution represents, leaving countries like the Bahamas to find or create another final court of appeal.

TCL in court action against Guyana govt

Wednesday, October 7th 2009

Source: Trinidad Express

Claxton Bay producer Trinidad Cement Ltd (TCL) and its subsidiary TCL Guyana Inc (TGI) yesterday filed an application in the Caribbean Court of Justice (CCJ) against the government of Guyana requesting that the CCJ hold Guyana in contempt of court for failing to implement the Common External Tariff on cement from non-Caricom countries. On August 20, the CCJ ruled that the government of Guyana was in breach of the Revised Treaty of Chaguaramas by failing to apply the CET on cement and thus, ordered that within 28 days from that date, Guyana implement and maintain the CET on cement from non-Caricom sources. While an application was subsequently made to Caricom by Guyana to waive the CET on cement, this request was turned down before the 28-day deadline stipulated by the CCJ, TCL said in a statement yesterday. Guyana has not taken steps to comply with the CCJ's ruling, TCL said.

Commentary: Law and Politics: Progress and change must go together
Published on Tuesday, October 6, 2009
By Lloyd Noel Source: Caribbean Net News Progress is not a movement from some bad place where you think you are, to some perfect place you would like to be. Progress is about the development of oneself and by extension that of the society as a whole. And in our situation in Grenada today, change is not just a promise, it is an absolute necessity that we must change the society as a whole. To do otherwise is like saying to those coming thereafter, that if Tom Dick and Harry, could get away with the wrong-doing in public office then so can you; and the need for genuine change to bring about real progress, will remain a hopeless dream and pie in the sky wishful thinking, that will always take us backwards and never forward. There is absolutely no doubt whatsoever, that the society we are struggling under, for the majority to make a living of survival now-a-days, must be changed, turned around or upside down, taken or removed from the state or feeling of stagnation or hopelessness and pushed, or prodded, or whatever it may take, to bring about some measure of progress and peaceful living and genuine survival. The lawlessness in too many areas are becoming the order of the day, whether it is simply walking into people’s yard or areas around the houses, and taking away any and everything they can carry; or going into gardens and farmlands and either stealing crops to go and sell, as though they planted and cared them for market; or maliciously chopping up and rooting up fruits and plants and leaving the poor farmer in economic distress; and even cruelly damaging animals and poultry for pure spite, because the culprits have some grudge or axe to grind with the owners, all these and those are now common place all over the country side. Some people are behaving as though they have no regard, or respect, or concern for lawful authority and the consequences that would flow from being caught and prosecuted. And to make bad matters even worse when they are caught and found guilty, and the magistrate impose the penalty provided by the law, others misguidedly take it upon themselves to protest, and complain and accuse the magistrate for being too harsh and draconian in enforcing the law. We need more such judicial officers, like the very fearless one we have in the Western district. We are hearing about violent incidents with knives and cutlasses now-a-day, as though the law pertaining to offensive weapons has been abolished. The police force have to be much more proactive with their presence and operations all over the country and not just for Marijuana plants detection. The rise in criminal activities is escalating far too rapidly and remedial action must be taken without further delay to curb this menace, or else we will soon join our neighbours to the North and South in terms of their frightening reputation for uncontrollable violent crimes. And should that situation ever be reached in these Isles, it would be worse than a hurricane disaster, because the one attribute we have and it remained intact after Ivan and Emily, is that all our visitors from wherever are always commenting with confidence how peaceful and safe and fearless they feel on the streets and other night spots when in Grenada. True enough one or two ugly incidents have occurred in the recent past involving a few visitors, but those few have been isolated instances that must be kept that way. We cannot afford to pretend, that we do not know or not hearing about the wrong-doing taking place around the country, and getting worse and more tragic with every other incident and close our eyes and ears to the reality. Because if we continue to maintain that position, and always feeling the problem is for those in authority to solve and nothing to do with us the shock waves will be much harder to cope with when it reaches our door steps, as it most certainly will in one way or another. We have to be our brothers and sisters keeper and share their grief; we have to co-operate with the law enforcement officers, and those in control and authority, to help bring about the changes that are necessary if we truly want to see progress for our people. And in talking about change and progress at this time, and about what is taking place around the Island of Grenada especially – in connection with the increasing incidents of criminal activities and lawlessness in general – the topic of our final Court of Appeal at the Privy Council in London, for all our English speaking CARICOM states except Barbados and Guyana, has again raised its troublesome head for further discussion and decision among other states. All the CARICOM states upon gaining their Independence from the early nineteen sixties continued to use the Privy Council as their Final Court of Appeal. Among all the other reasons, it was a free service to all Commonwealth countries from the motherland and the Head of State in Her Majesty. And even when many of the bigger states opted for Republican status with their local Head of State, they still kept the Privy Council as their Final Court of Appeal. Trinidad and Tobago is a good example right next door. In our cases in the OECS, we had no choice because we simply could not afford to finance a Final Court of Appeal, in addition to the first Court of Appeal we were already sharing as the Associated States Supreme Court. Guyana dropped the Privy council when it went Republic and the Barbados government was peeved over a decision against it from the Privy Council and decided to go its own way, although it kept the Queen as the Head of State, and continued to be called or known as little England. The Privy Council is staffed by Law Lords from the Former House of Lords – or Upper House of the British Parliament in England. And that in itself was a very peculiar arrangement that could perhaps only operate in England where so many things, and systems, and ways of life, have for centuries functioned on the basis and strengths of convention. In effect those Law Lords – very distinguished and learned lawyers, who became judges and later elevated to the highest level of the Court of Appeal – were sitting in Parliament where the laws are made, and later on sitting in a court as judges to rule on the very laws. Now from the first of October, 2009, that peculiar system is no more in existence. From that date the Supreme Court of England has taken over the role of the House of Lords as the Final Appellate Court in England, Ireland, Scotland and Wales (The British Isles). Under the new law passed through Parliament, eleven of those Law Lords who form that court, have moved out of Parliament and into their own independent Supreme Court Building, to sit only as Appeal Court Judges. And going with them into that new setting is the long standing portfolio of the Final Appellate Court of Her Majesty’s Privy Council, for those Commonwealth Countries which still maintain that judicial linkage. And with that change in the British Legal system that has been in existence for many, many centuries, and has served us with distinction, integrity, and enduring confidence since independence, the hue and cry has already started, that we in the CARICOM region must see this move as the beginning of the end, and make haste to find our own Caribbean Final Appellate Court. This call to cut our ties with England as the final Appellate Court is not new. In fact our CARICOM leaders some years ago amended the Treaty of Chaguaramas, to bring into force the Caribbean Single Market and Economy (CSME), and in that amended treaty that ALL the region’s leaders at the time signed, provision is made therein for the (CCJ) Caribbean Court of Justice, which is expected to perform a dual role as our highest court in the region. The first role deals with disputes among or between states, over the interpretation of the CSME. Rules and Procedures, and that came into operation as a matter of course. The bigger problem concerns the second role of the CCJ, as the Final Appellate Court for those states in CARICOM which have been using the Privy Council as such, from the time of their Independence. Of course, Guyana and Barbados had opted out of that arrangement before the CSME came into being, so they are the only two states now using the CCJ as their Final Court of Appeal. Needless to emphasize the point that the whole exercise towards bringing the remaining states into readiness to adopt the new court as their Final Appellate Court is fully tied up or entangled in politics between opposition groups in the respective states. The governments in power either have to go to the people by way of a referendum for authority, or must have a certain level of the majority seats in Parliament to be able to pass the enabling legislation. And therein lays the dilemma towards any formal movement. Even those who signed the CSME Treaty when they were in power are now in opposition with second thoughts. St Vincent and the Grenadines have taken the lead and I believe Belize have also published its intention to move ahead by year end. Elsewhere in the region, it is all lip service and grave un-certainty about where we going and how we plan to get there. Loads of doubt about that change is very prevalent among a very wide cross section of our people. And the major question remains large and looming among the many doubters on this matter are we ready and prepared to make that drastic change, at this or anytime soon? And from my own perspective, I cannot help or resist the query, would that change go together with the progress we are currently aiming to achieve? Only time and coming events will fully answer those questions.

TIME TO LEAVE PRIVY COUNCIL

KEN CHAPLIN

Tuesday, October 06, 2009

Source: Jamaica Observer

Justice Seymour Panton is a well-respected High Court judge. He is president of Jamaica's Court of Appeal. He balances the scales of justice to a remarkable degree and he is articulate. However, he was way out of line in his recent comments that the only people who are interested in retaining the Judicial Committee of the Privy Council are murderers, the very wealthy and people with a colonial mentality.

Justice Panton was reacting to the statement by Lord Nicholas Phillips, president of Britain's new Supreme Court that Britain's top judges are being diverted from the task of modernising that country's legal system by spending a disproportionate amount of time hearing appeals from independent Commonwealth countries like Jamaica. It should be pointed out that the Privy Council does the work free of cost.

Justice Panton's statement is misleading and makes no sense at all, to say the least. The poor people of Jamaica seem to have more confidence in the Privy Council than in Jamaica's Court of Appeal because they believe they get justice from the Privy Council, especially in murder cases and legal action against the government. I believe that Jamaican judges since independence have shed most of their pro-establishment stance as demonstrated by judges like Sir Colin McGregor, a former chief justice. Today's high court judges have no such proclivity and whatever errors they make in their judgements are sometimes due to misinterpretation of the law or not doing sufficient research on legal precedents.

Were it not for the Privy Council, many Jamaicans would have been hanged, would be serving life sentences or denied recompense for injustice by agents of the state. A classic case was the overturning by the Privy Council of the murder convictions of two poor Jamaican men on the basis that video footage of the scene of a 1996 robbery, in which a policeman was killed, was not made available to the defence at their trial. The men cried in court after they were found guilty, saying that they were innocent. The two accused were Randal Dixon and Mark Sangster. Dixon was found guilty of capital murder and sentenced to death while Sangster was found guilty of non-capital murder and sentenced to life imprisonment.

The men appealed against their convictions but the appeals were dismissed by the Court of Appeal. They then appealed to the Privy Council which overturned the convictions, suggesting that the investigations should be reopened because the police appeared not to have informed the prosecution of the videotaped evidence so that it was never disclosed to the defence. The police identified Dixon and Sangster as among four men who were involved in the robbery in which a policeman was killed. The videotaped footage from the security camera at the bank where the shooting took place was not produced by the police at the trial or the hearing before the Jamaican Court of Appeal. The Privy Council asked for the tape, viewed it (as the Court of Appeal should have done) and said that neither Dixon nor Sangster appeared on it. The men were eventually freed after many years in prison and the experience affected them mentally.

There was the case of Michael Bernard, another poor Jamaican. One day in 1990 Bernard patiently waited his turn to use a public telephone. A policeman came up and demanded to use the telephone. He told the policeman to join the queue and wait his turn. An argument followed and then shoving took place. The policeman drew his service revolver, shot Bernard and arrested him. Bernard took the matter to the Supreme Court and was awarded $2.2 million in damages by Justice Zaila McCalla. The attorney general appealed and the Court of Appeal surprisingly ruled that the action of the policeman fell outside the scope of his lawful duties and therefore the state could not be held liable. The court, however, recommended that the law be changed to give justice to victims of such attacks. The Privy Council endorsed the ruling of Justice McCalla.

There was also the depressing case of Janice Allen, 12-year-old daughter of helper, Millicent Forbes. Janice was shot dead on a street in an inner-city community in Kingston by one of a group of policemen who then refused assistance while she lay dying on the pavement. The policeman, Rohan Allen, was charged with murder after a long delay. After a preliminary inquiry lasting 16 months, trial took place in the Port Antonio Circuit Court. Allen pleaded not guilty and was dismissed of the charge under strange circumstances. Two applications for judicial review were turned down and Forbes, supported by the human rights group, Jamaicans for Justice, had to appeal directly to Her Majesty in the Privy Council on the basis that what took place in the Port Antonio Circuit Court was a fraud and null and void.

The Privy Council ruled that it is for the Director of Public Prosecutions to decide whether to re-indict the accused and submit that he is not entitled to plea of autrefois acquit (a principle in law which establishes that an accused who shows that he has been tried by a competent court for a criminal offence and is either convicted or acquitted shall not again be tried for that offence, save upon the order of a superior court made in appeal proceedings relating to that conviction or acquittal). The DPP carried out an intensive investigation and decided that there was not sufficient evidence to warrant a retrial. In dismissing the appeal, the Privy Council said that the DPP's decision would in principle be subject to judicial review and I understand that attorneys for Forbes are proceeding on this course. So the legal battle continues.

There are many more cases like these three in the history of jurisprudence in Jamaica where the Privy Council came out strongly for the poor. That is why so many Jamaicans would prefer to have the Privy Council over the CCJ, but it is about time that Jamaica and other Caribbean countries not using the CCJ have their own court of last resort. As I wrote in this column on August 5, 2003, there is one compelling reason for the CCJ: more Jamaicans will have the chance of appealing because taking one's case to Britain is rather expensive. There is no doubt that we can get judges of a high calibre like Justice McCalla to sit on the panel. However, the issue must be decided in a referendum. The government has already decided to take this course. It is now a matter of when it will be financially possible to hold the referendum. It may be placed on a ballot in the next general elections.

Judges in UK’s Privy Council frustrated by Caribbean cases

Source: Turks & Caicos Sun

Published: Monday, October 5, 2009

The judges who sit on Britain’s distinguished Privy Council have indicated that they are frustrated hearing cases from the Caribbean because they are too time-consuming.

According to an article in the Financial Times, top judges charged with a landmark modernisation of the British legal system will be diverted from their task by an unlikely and perverse duty: serving on a court that is one of the country’s fustiest jurisprudential relics.

The article noted that Lord Phillips, president of the new Supreme Court, said he was searching for ways to curb the “disproportionate” time he and his fellow senior justices spent hearing legal appeals from independent Commonwealth countries to the Privy Council in London.

The concerns highlight how the Supreme Court’s creation is a quintessentially British constitutional fudge, separating the judiciary from parliament for the first time but leaving intact a sister chamber widely seen as a post-imperial anachronism.

Lord Phillips said in an interview that he was concerned that the judges who will staff the Supreme Court from next month would – as during their previous incarnations as House of Lords justices – end up spending as much as 40 per cent of their working hours on Privy Council business.

He said: “It is a huge amount of time. I personally would like to see it reduced. It’s disproportionate.”

The president questioned whether some Privy Council cases, which have ranged from Jamaican death row appeals to fights over press freedom in Bermuda, needed to be heard by a panel of five of Britain’s most senior judges.

He said he was looking to take some of the pressure off the Supreme Court by drafting in Court of Appeal judges to help out, although he added that “in an ideal world” former Commonwealth countries would stop using the privy Council and set up their own final courts of appeal instead.

A creature of Britain’s 19th century colonial pomp, the Privy Council judicial committee is now used as a London-subsidised top court by about 15 independent nations, most of them small islands in the Caribbean and Pacific.

Many independent observers say this is both an ideological stain and a financial drain on the newly-created Supreme Court.

The Council judicial committee shares both the court’s handsome Parliament Square headquarters and access to the dozen judges whose £200,000-a-year day job is supposed to be resolving Britain’s most important criminal and commercial cases.

Robert Hazell, director of The Constitution Unit at University College London, said it was a “minor public scandal” that judges in the country’s top court spent almost half their time on business “of no interest to anyone in the UK”.

He said: “If they didn’t spend time in the Privy Council, the justices of the Supreme Court could hear almost twice as many cases coming up from the UK legal system.”

The Ministry of Justice declined to respond Lord Phillips’ comments, saying that how he ran the Supreme Court was a matter for him.

According to the Financial Times article, as the new Supreme Court opens for business to much fanfare, five of its 12 justices will be busy with something else: a land dispute in the Turks & Caicos Islands. The next day, the judicial quintet - hired at about £200,000 a year to decide on some of Britain's biggest cases in the business world and beyond - is due to be embroiled in a dispute involving Jamaica's financial regulator.

The schedule could hardly be a better illustration of why Lord Phillips, Supreme Court president, is worried his cadre of elite judges will see their time sapped by a series of lawsuits that are essentially ghosts from Britain's imperial past.

The Turks and Jamaican cases are part of the roster of the Privy Council's judicial committee, an archaic body that sits uncomfortably with the reformed top court Britain is about to unveil to the world. The committee is - as Lord Phillips puts it with lawyerly understatement - a "very unusual court", reform of which is "easy to postulate but not necessarily easy to achieve".

Created in 1833 - the same year as slavery was outlawed in the West Indies and other colonial outposts - the committee is now the highest court of appeal for a clutch of British overseas territories and independent Commonwealth nations in the Caribbean and elsewhere.

Lord Phillips says the problem is intensified because there is often little filtering of committee cases before they reach London, meaning that Britain's top justices are sometimes hearing lawsuits that wouldn't even have reached the Court of Appeal if they'd originated domestically.

An even bigger dilemma is that - in what some might see as a tiny morsel of poetic justice for imperial oppression - Britain cannot unilaterally abolish the judicial committee without the consent of the former colonies using it.

While there have been efforts to launch a senior Caribbean court to take on the kind of cases that reach the Privy Council, some countries - perhaps understandably - don't seem in a great hurry to end their access to a source of pro bono judicial expertise in London.

Robert Hazell, director of The Constitution Unit at University College London, says the nations using the judicial committee should at the very least pay their way. He says: "Why should we provide these services for free? At the moment it doesn't cost these countries a penny."

The criticisms of the committee come amid attacks on the wider role of the Privy Council, which has its roots in the Norman era and is seen by some as an instrument of arbitrary executive power. If the council's judicial arm is seen to be undermining the work of Britain's top court, then the pressure may yet grow further for broader constitutional change than the government has so far allowed

Caribbean Constitutions Compromised By Changes To British House Of Lords

Source: CaribbeanWorldNews.com

Published: Fri. Oct. 2, 2009

Constitutions of independent Caribbean countries, which still send appeals to the Judicial Committee of the Privy Council in London, will be compromised by the abolition of the judicial jurisdiction of the House of Lords.

So says Grenada-born attorney, Dr. Francis Alexis. Alexis said the October 1, 2009 dissolution of the judicial jurisdiction of the House of Lords and the substitution of the UK Supreme Court, inaugurated Thursday, means that there will no longer be law lords to constitute the main bench of the Privy Council.

This compromises the fundamental premise on which Caribbean constitutions continued the Privy Council into independence, said Alexis, adding that it will humiliate and embarrasses independent Caribbean nations.

It means that decisions taken in London as of Thursday will seriously impact constitutionally on independent Caribbean countries which retain appeals to the Privy Council, emphasizing how untenable it is for the Caribbean to continue sending appeals to the Privy Council, said Alexis.

He said the least the Caribbean can do now to redeem nationhood is to pull out of the Privy Council as quickly as possible. This would answer the wake-up call to get out early from the Privy Council , sounded recently by the president of the UK Supreme Court Lord Phillips, said Alexis.

Fortunately, Alexis notes, the Caribbean has available, as a regional final appellate court, the Caribbean Court of Justice. This facility of the CCJ, Alexis advises , should be utilised urgently by the Caribbean, following the shining examples of Barbados and Guyana.

British legal history was yesterday made with the new Supreme Court taking over from the House of Lords as the highest court in the UK. The Supreme Court is the result of the Constitutional Reform Act of 2005, aimed at separating the highest appeal court from the upper house of Parliament, and removing the Law Lords from the legislature.

Privy Council slams 'wasted time': Jeremie 'embarrassed'

by Juhel Browne

Source: trinidadexpress.com

September 30, 2009

"The Privy Council is an excellent court. I've been closely watching the Caribbean Court of Appeal; that's a developing and ever more confident court," added Starmer.

Starmer was responding to questions in relation to reports in the British media last week that Lord Nicholas Phillips, who is set to become the first president of the Supreme Court of the United Kingdom, has raised concerns about the amount of time the Privy Council spends on Caribbean legal issues.

He said the Caribbean and other Commonwealth countries needed to establish their own final court of appeal and questioned the need for some cases, including Jamaica's death-row appeals, to be brought to the Privy Council.

On the weekend, Jamaica's Court of Appeal President Seymour Panton, who has been an ardent advocate for Jamaica to sever ties with the Privy Council, agreed with the British judge, noting that Jamaica deserved the bashing.

Starmer, however, took a different approach when asked if he agreed with Lord Phillips' statements.

"...I would not want to influence the decision one way or the other," said Starmer.

"I'm sure if [Jamaicans] chose to retain the Privy Council that would be an excellent service for them. I'm equally confident that if they decide on the Caribbean Court of Justice that would provide the service that they need. For me, it's very much a question that Jamaicans need to decide...," he added.

Justice Minister Dorothy Lightbourne on Sunday reiterated that Government intended to put the issue to a referendum.

However, when pressed, Lightbourne said no timeline had been set for the referendum, given the cost associated with such a venture.