FAREWELL: Outgoing CCJ president pleased regional court has silenced critics http://www.cananews.net/ Sat, 16 Jul 2011 08:40:00 PORT OF SPAIN, Trinidad, CMC – Outgoing President of the Trinidad-based Caribbean Court of Justice (CCJ), Michael de la Bastide Friday he was satisfied that the regional court has gone a long way “towards persuading the doubting Thomases” and silencing critics about its performance. Peter Richards PORT OF SPAIN, Trinidad, CMC – Outgoing President of the Trinidad-based Caribbean Court of Justice (CCJ), Michael de la Bastide Friday he was satisfied that the regional court has gone a long way “towards persuading the doubting Thomases” and silencing critics about its performance. Speaking at a special sitting of the court to mark his retirement, Justice de la Bastide, 74, said that six years after the court was inaugurated, “I venture to suggest the Court’s record of performance to date suggests that it is capable of assuming the dual responsibility of interpreting and applying the Revised Treaty of Chaguaramas and …shaping and developing the regional jurisprudence as the final court of appeal for the English-speaking Caribbean”. The CCJ which has both an original and appellate jurisdication, also operates as an international tribunal interpreting the Revised Treaty of Chaguaramas that governs the Caribbean Community (CARICOM) Single Market and Economy (CSME) and the regional integration grouping. However while most of the countries are signatories to the original jurisdiction, only Barbados, Guyana and Belize are members of the appellate jurisdiction of the court that was established in 2001 to replace the London-based Privy Council as the region’s final court. Justice de la Bastide, the CCJ’s first president, said that with only three countries subscribing to the court’s appellate jurisdiction, “we can hardly claim complete success in winning the confidence of peoples of CARICOM. “I think however we have gone a significant distance towards persuading the doubting Thomases and disarming our critics. This I suggest is due to three factors. “The first is the favourable commentaries which our judgments have for the most part received. The second is the user friendly techniques and technologies which the Court has adopted to facilitate access to it and the efficient and timely disposition of cases. The third is the growing appreciation by the public in general and lawyers in particular of the measures which the CARICOM heads of government have to their credit taken to ensure the independence of the Court.” He said these measures are to be found in the various instruments by which the CCJ and its support bodies, the Regional Judicial and Legal Services Commission (RJLSC) and the CCJ Trust Fund. “The architecture of these bodies, their composition, powers and functions and the relationship between them, was carefully and consciously designed after consultation with important stakeholders. The primary purpose was to protect the Court from political and other extraneous influence and to give it every chance of becoming a quality court. “The steps taken have evoked the admonition and envy of many other regional and international tribunals,” he said. But the outgoing head of the Trinidad-based court, said he was using the opportunity of the special sitting “to warn and advise strongly against any proposal, however well intentioned, which would remove or abridge the Court’s rights in relation to its own budget in the name of correcting an alleged but illusory ‘flaw’ in the governance structure of the Court and Commission. “In this connection I would remark in passing that I have great respect for businessmen. As they say, some of my best friends are businessmen, but the training and experience of businessmen do not equip them to identify and assess the needs of a court, far less one with two jurisdictions! “Perhaps the point is more tellingly made in the penultimate recital in the preamble to the protocol which was agreed by the Court, the Commission and the Trustees to govern their relations,” he added. Justice De la Bastide said before tampering “with the carefully balanced architecture of the Court and Commission, we would also do well to remember that no one has yet devised a means of insulating businessmen from political pressure”. During his farewell speech, the outgoing CCJ president paid tribute to the people who had been instrumental in the successful operations of the court over the last six years adding that they will be fortified on September 1 by the assumption of office by the new President Sir Dennis Byron. “They will constitute a court which in my estimation, can be relied upon to perform to a standard of excellence that can match that of any court in the Commonwealth - or indeed on this planet,” he added. Justice de la Bastide also acknowledged the role played by the RJLSC, reiterating that “in every case, their appointment as Commissioners is free of any hint of political influence. “ The confidence of the Heads in the independence and judgment of the Commission is attested to by the protocol to the Agreement which entrusts the Commission with the responsibility of deciding whether to extend the tenure of the President beyond the normal retirement age notwithstanding that the President is also Chairman of the Commission subject to the caveat that the Chairman shall not take part in any deliberations or decision of the Commission relating to the matter.” Justice de la Bastide told the special sitting that he had “the good fortune as President to captain a very strong team indeed. “That being the case, two things follow. One is that just as the captain of a weak team may escape blame for its defeat, so too the captain of a strong team must acknowledge the role of his team-mates in achieving a successful result. “The other consequence is that the team must not be allowed to disintegrate or to deteriorate. Hence, my conviction that it would be nothing short of a tragedy for this region if the CCJ were allowed for whatever reason or by whatever means either to depart the scene altogether or to compromise the standards of excellence which it has set itself and has so far achieved.” The outgoing CCJ president said he did not think that “future generations will easily forgive us for such a wanton waste of a unique opportunity. “I make no apology for saying I am proud of this Court and I am comforted by the knowledge as I take my leave that it is in good hands. Naturally, I shall continue to follow its progress with great interest and attention,” he added.

What’s up with the CCJ?

SOURCE: June 4, 2011 | By KNews | Filed Under Letters

Dear Editor,

There are three pressing questions that must be asked of the Caribbean Court of Justice (CCJ): Why has it not filled its two existing vacancies?

Why is its constitutional age limit of 70 years not being enforced? And why it has never had an East Indian Justice on the court?

Collectively, these three questions represent a worrying trend that may seriously undermine the credibility of the court if they are not addressed forthwith.

The Caribbean Court of Justice (CCJ) is the Caribbean regional judicial tribunal that was established on 14 February 2001. There were 10 initial members: Antigua & Barbuda; Barbados; Belize; Grenada; Guyana; Jamaica; St. Kitts & Nevis; St. Lucia; Suriname; and Trinidad & Tobago. Two other member states, Dominica and St. Vincent & The Grenadines, joined on 15 February 2003, bringing the total members to 12. he CCJ came into force on 23 July 2003, and the CCJ was inaugurated on 16 April 2005 in Port of Spain, Trinidad & Tobago.

Currently, two of the judicial nine seats are vacant. Why is this entity that purports to represent the CARICOM region unable to seat a full court?

Are these ongoing vacancies symptomatic of the low esteem the legal profession has for this body? It is worthwhile getting an answer as to what’s up with the CCJ.

Are the constitution age limits being ignored given the apparent inability to attract a full slate of judges?

My understanding is that there is an age limit of 70 and two of the current Justices, Michael de la Bastide at 74 and Desiree Bernard at 72, are now beyond that age. Is the highest court in the region ignoring its own rules? What’s up with the CCJ?

How come there has never been an East Indian Justice on the Court? Given the East Indian majority in population in Guyana and Trinidad and Tobago, and the glorious legal heritage that east Indian have added to the profession via the Luckhoos, Persauds and Singhs it does beg the question why no East Indian? West Indies cricket has suffered from racial discrimination through its history which is in no small part responsible for the sport being on its death bed. Is its legal system doing the same? It would be nice to get an honest answer.

Vijay P. Kumar

At the root of Caribbean disunity

by CLAUDE ROBINSON

Published by the Jamaica Observer

Sunday, April 03, 2011

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

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

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

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

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

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

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

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

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

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

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

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

Reflection of deep suspicions and mistrust

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Leader of a UN criminal tribunal for Rwanda named next chief of Caribbean Court of Justice

Source : The Associated Press

The president of a U.N. criminal tribunal has been named chief of the Caribbean Court of Justice.

The Trinidad-based regional appeals body has issued a statement saying that St. Kitts native Dennis Byron will soon succeed retiring president Michael de la Bastide. The court said it would announce Byron's starting date later.

Byron is president of the U.N. International Criminal Tribunal for Rwanda and a former chief justice of the Eastern Caribbean appeals court.

The Caribbean Court of Justice is the highest court of appeal for several former British colonies in the Caribbean. So far, it has replaced the colonial-era British Privy Council in Barbados, Belize and Guyana.

Byron's appointment was announced Wednesday.

Jamaica’s position on CCJ scorned

Jamaica’s position on CCJ scorned

Published: Friday, January 28, 2011

ST GEORGE’S, Grenada (CMC) – Prime Minister Tillman Thomas has scoffed at a suggestion by the Government of Jamaica to opt for its own final Court of Appeal instead of going the route of the Caribbean Court Of Justice (CCJ).

Thomas, who is the current chairman of Caricom, said Jamaica’s argument that there would be political interference in the CCJ did not make sense.

“What I find a bit strange about Jamaica’s position is that the argument against the CCJ is that there would be political interference. Domestically, it makes it easier for political interference,” he said.

Late last year a debate in Jamaica’s Parliament, over whether to sever ties with the British Privy Council as its final Court of Appeal, revealed that the government while agreeing to move away from the Privy Council, was proffering a Jamaica Court of Appeal over the Caribbean Court of Justice (CCJ).

This idea was sharply shot down by the opposition which called for a referendum on the issue.

Thomas said there is a need for more collective confidence in the ability of regional judges to hand down unbiased judgments.

“We in the region have competent and capable judges to man our courts,” he said.

“As a matter of fact, one of the best Courts of Appeal we have experienced in the region is the Court of Appeal in Grenada during the revolution and the revolution had its problems; but that Court of Appeal which was in Grenada was one of the most distinguished and outstanding courts in the region.”

One of the judges who served in that court is Sir Nicholas Liverpool, Dominica’s President. He served as Justice of Appeal in the Grenada Court of Appeal from 1979 to 1991.

Grenada is a signatory to the CCJ and Thomas said he believes it’s just a matter of time before the country takes steps to adopt it as its final appellate court

Read more: http://www.jamaicaobserver.com/news/Jamaica-s-position-on-CCJ-scorned#ixzz1CLUt2nnt

Dancing away from the CCJ

Dancing away from the CCJ

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

Source: Jamaica Observer

Published: December 29, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PM suggests local final appeal court

BY ALICIA DUNKLEY Observer

Wednesday, December 22, 2010

Source: http://www.jamaicaobserver.com/news/PM-suggests-local-final-appeal-court_8249600#ixzz18xjUriTB

PRIME Minister Bruce Golding yesterday raised the possibility of Jamaica establishing its own final appeal court as an option to the London-based Privy Council or the controversial Caribbean Court of Justice (CCJ), but held that his administration still believed that any decision on the matter must be put to a referendum.

"We wish to consider our own final court of appeal. We would respectfully wish that is something for which due consideration to be given," Golding said while closing debate in the Parliament on the Charter of Fundamental Rights and Freedoms which will replace Chapter III of the present Constitution.

"It is something we wish to consider in great detail and in earnest. We believe we have the judicial experience, we believe we have the maturity to do it," Golding said.

The prime minister raised the point while rejecting suggestions from the Opposition People's National Party that the matter of a final appellate court should be settled along with the passage of the Charter. According to Golding, his administration had always held that "the adoption of a final court should be put to Jamaicans in a referendum".

"Take it to the people and let the people decide," he said. Pointing out that there were members of both the Government and Opposition in favour of the CCJ as the final court, Golding said "I don't think any of us in here must ever make the mistake of presuming that there is any consensus among the people of Jamaica on this, nor must we ever seek to assume that the majority of those people will vote in a particular way".

"If what we are depending on is a consensus among us that we go to the people and say both the JLP and PNP are urging you to vote in particular way after all the years of discussion and debate on this matter, what would that say to us? That it is political mobilisation," he added.

The prime minister's insistence followed on the contribution of Opposition Leader Portia Simpson Miller who said while her party had "always been anxious to support any step to move the process forward so that all citizens of Jamaica will begin to enjoy a wider span of fundamental rights", the matter of the adoption of the CCJ as the final court should also be settled.

"It would be good if it could be settled while our prime minister is chair of Caricom," she said. "Shame and embarrassment should drive us to do everything in our power to avoid a repeat of the authorities in Britain advising us that we have overstayed our welcome. Prime Minister, the Privy Council is asking us to leave, have we no shame? We will not rest in our push for the CCJ to become our final Court of Appeal."

Simpson Miller said that if this was not done, the debate on the Charter of Rights would signify nothing.

In a response which very nearly caused the House to descend into another of its by now familiar rows, Golding insisted "it is not our understanding that if you don't get the CCJ you can't get the Charter of Rights. That is something that remains on the table of discussion. I have indicated that the views of this side are not inflexible. We agree with the Opposition that ...we have to dispense with the Privy Council. We are not yet satisfied that in doing so we must... replace it with something else whose existence is not within (our control)".

Source: http://www.jamaicaobserver.com/news/PM-suggests-local-final-appeal-court_8249600#ixzz18xiQmNo5

CCJ to hear first Belize appeal on Monday

by Global News Staff

Source: Caribbean News Now

Published on November 26, 2010

BELMOPAN, Belize -- The Caribbean Court of Justice (CCJ) will hear the first appeal from Belize on Monday, and it will be an appeal that has regional interest and perhaps will create Caribbean jurisprudence, since it involves misfeasance or alleged misconduct by government ministers.

The appeal was filed by two ex-ministers of government, Florencio Marin, Sr. and Joe Coye, after the current Dean Barrow administration took them to court for nearly a million dollars in damages as part of a misfeasance lawsuit.

The Belize government initiated the suit against the two former ministers for $924,056, which the attorney general claimed government had lost in the sale of 56 acres of land.

Former Chief Justice Abdul Conteh dismissed the government's case after he raised a technical question of whether the government was pursuing the right kind of claim against the former ministers.

The former chief justice ruled that the attorney general cannot file a misfeasance action in the Supreme Court, but could have pursued the route of filing a malfeasance claim for criminal sanctions in the Magistrate's Court.

The attorney general successfully appealed to the Belize Court of Appeal, which ordered that the Supreme Court hear and determine the case filed by the government.

The two former ministers then appealed to the CCJ, which has replaced the Privy Council as the final court for Belize.

The appellants’ attorneys, as well as lawyers for the respondents (the Belize government), had a pretrial hearing via teleconference.

The president of the CCJ, Michael de la Bastide, is reported in the Amandala newspaper as saying, "I think this is a matter of great public importance -- that is whether the members of a government which has replaced by another government are liable to be sued by the attorney general on behalf of the state for loss which they have allegedly caused the state by their misconduct -- or their misfeasance to use the technical word -- while they were in office."

"This is a matter that I am sure is not only of great importance (I would have thought) to the people of Belize, but indeed to the people of this region," he added.

He noted that a CCJ ruling "...would be describing what the law is finally for a least some of the countries in CARICOM" and particularly for Barbados and Guyana, which are the only other two nations to have accepted the CCJ's full appellate jurisdiction.

Four Belizean lawyers will travel to Port of Spain for Monday's hearing.

Dr Elson Kaseka and Magali Marin-Young are appearing for the ex-ministers, while Lois Young SC and senior crown counsel Nigel Hawke of Guyana will represent the attorney general of Belize.

It is understood that the entire panel will sit to hear this important appeal: President de la Bastide, Justices Jacob Wit, Desiree Bernard, Adrian Saunders and Rolston Nelson.

Caribbean court of justice: a model for international courts?

Five-year-old CCJ has been praised for its process of selecting independent, high-quality judges

Source: Philip Dayle guardian.co.uk,

Published: Friday 10 September 2010

A book by UCL professors examining how judges are chosen for international courts has been getting a lot of attention recently. One of the authors has praised the process of selecting judges for the Caribbean Court of Justice (CCJ) – a supra-national court serving the Caribbean.

Professor Kate Malleson names the CCJ's external selection body – called the Regional Judicial and Legal Services Commission (RJLSC) – as a model for identifying independent and high-quality judicial candidates.

Born of a fear of political interference, the commission is chaired by the CCJ's president and consists of legal and non-legal persons, as well as members of civil society from different Caribbean member states. The court's bid to be independent of governments is bolstered by the fact that it is wholly financed through a trust fund, from money raised on international markets.

Structurally, the CCJ is an interesting hybrid. It is both a final appellate court for criminal and civil cases and the tribunal that resolves treaty disputes between member states. As an appellate court, it replaces appeals to the judicial committee of the privy council. The privy council was previously the UK supreme court, hearing matters as the final appellate authority, and still hears appeals from British territories, dependencies and some Commonwealth countries.

Though most of the CCJ judges previously sat at a national level, at least one member of the panel is required to be an expert in international law. This has favoured legal academics, particularly those with experience working with the Caribbean community (Caricom) system. One judge is also required to be from the civil law tradition, reflecting the presence of civil law jurisdictions such as Suriname and Haiti.

Unlike the international criminal court (ICC), the CCJ selection system does not include prescriptions to ensure gender balance or quotas for country representation. Judicial vacancies are advertised and suitably qualified candidates may apply.

As the two countries that have notoriously held off on submitting to the CCJ as a final court of appeal, Trinidad and Tobago and Jamaica each currently boast citizens on the CCJ's seven-member panel. In the five years since the inception of the CCJ, only one woman has been appointed to sit as a judge.

Tracy Robinson, senior lecturer in the law faculty at the University of the West Indies at Cave Hill in Barbados, is not persuaded that this system ensures sufficient diversity: "In the absence of explicit provisions, I hope the under-representation of women on the court is directly addressed by the Service Commission [and] taken into account in the appointment of new judges". Early fears that the CCJ was set up by Caribbean governments to be the "hanging court", as the antidote to the privy council's supposed hostility towards the death penalty, has not materialised. In one of its first decisions, the court upheld a challenge to the death penalty, arguably in the liberal tradition of the privy council. Court watchers such as Robinson believe that the true test for the CCJ will come in civil liberties cases in areas other than the death penalty. It's in producing a range of these decisions, she argues, that the court is likely to establish itself as an authoritative voice in the region.

Maybe it's too early to judge the judges of the CCJ. The absence of Jamaica and Trinidad and Tobago has led to a paltry case load for a court that is hugely expensive to maintain. And without more robust public interest lawyering or arguing novel questions of law, the true mettle of the CCJ has not been tested. The jury is out on whether the court will be transformative in developing the jurisprudence of the region.

Kamla wants to opt out of Carib court

Carib Wise Men urge Kamla to go easy on CCJ

By Bert Wilkinson

Published: Monday, August 30, 2010

Source: Caribbean Life News

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

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

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

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

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

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

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

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

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

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

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

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

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

Rowley renews call to PP Govt:

Replace Privy Council with CCJ

Published: 28 Aug 2010

Source: Trinidad Guardian

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

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

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

Dr. Archibald Re-Appointed to Caricom Regional Judicial & Legal Services Commission

Source: Virgin Island, Platinum News

Published August 24, 20010

Dr Joseph S. Archibald QC of St Kitts Nevis and the British Virgin Islands has been re-appointed for a second three-year term from 20 August 2010 as a Member of the Caricom Regional Judicial and Legal Services Commission ( "the Commission") according to a letter dated 13 August 2010 from The Right Honourable Mr Justice de la Bastide TC, QC, the Chief Justice of the Caribbean Court of Justice in his capacity as Chairman of the Commission, pursuant to the provisions of the Caricom Agreement Establishing the Caribbean Court of Justice and the Commission.

The Commission appoints the Judges, and recommends the appointment of the Chief Justice, of the Caribbean Court of Justice. Members of the Commission, when travelling in the Caricom Region on Commission business, are granted privileges and immunities similar to those granted to Supreme Court Judges.

Dr Archibald was jointly nominated by the Organisation of Commonwealth Caribbean Bar Associations and the Organisation of Eastern Caribbean States Bar Association as required by the said Caricom Agreement.

Dr Archibald is an International Lawyer who was Called to the Bar as a Barrister of Lincoln´s Inn in England fifty years ago in 1960 with a special Certificate in International Law; was appointed a Queen´s Counsel of the British Commonwealth thirty years ago in 1980; is a Member of the London Court of International Arbitrators; and is one of the three Patron Members of the Washington-based World Jurist Association.

Press Release - August 4, 2010

SECRETARY-GENERAL CARRINGTON STEPS DOWN AT YEAR END

His Excellency Edwin Carrington, Secretary-General of the Caribbean Community (CARICOM) has notified the Heads of Government of the Caribbean Community of his decision to step down from his position, effective 31 December 2010.

Mr. Carrington, a national of Trinidad and Tobago was appointed in 1992 - the sixth Secretary-General of the Community. He succeeded Mr. Roderick Rainford of Jamaica.

“It has been my privilege and honour to have been given the opportunity to serve the Region and its people in this capacity” said Mr. Carrington.

“These last 18 years as Secretary-General have been the pinnacle of my public service career. I have, despite the odds, done all I could to help create a viable and secure Community for All. It has been a period of important achievements as well as significant disappointments. I leave satisfied and confident however, that the Caribbean Community now has a solid platform on which to continue to build the integration movement,” the Secretary-General said

“I am looking forward to the opportunity to deal with some pressing family issues and to enjoy much more time with them. I pay them the highest tribute for their patience, understanding and tremendous support during this long and arduous journey”, Mr. Carrington added.

During his tenure, Mr. Carrington oversaw the revision of the Treaty of Chaguaramas and the consequent transition of the Community from a Common Market to a Single Market in 2006. Under his Secretary-Generalship, the platform is also being set for eventual evolution of the Community to include a Single Economy - the framework for which Heads of Government have undertaken to create by 2015. Mr. Carrington’s term has also seen the establishment of a number of key institutions designed to put the integration process on a sound base, including the CCJ - Caribbean Court of Justice (2005); as well as CROSQ - the Caribbean Regional Organisation for Standards and Quality (2002); the CCCCC - Caribbean Community Climate Change Centre (2005); the CCC - CARICOM Competition Commission (2008); and the CDF – CARICOM Development Fund (2008).

Mr. Carrington, an economist by profession, first joined the then Commonwealth Caribbean Secretariat in 1970 as Chief of Economics and Statistics, rising to Director of Trade and Integration before being appointed as Deputy Secretary-General of the African, Caribbean and Pacific (ACP) Group of States in 1976. He was subsequently elected Secretary-General of the ACP in 1985, the only Caribbean national, to date, to have held that position. In acknowledgement of his outstanding service to the ACP, Carrington Hall at the ACP Secretariat (Brussels) is named in his honour.

On returning from Brussels in 1991, Mr. Carrington served as his country’s High Commissioner to Guyana before his appointment to his current position. Carrington is the longest serving Secretary-General of the Community in the service of which he has been the recipient of national awards from Barbados, Belize, Guyana, Jamaica and Trinidad and Tobago as well as from the Dominican Republic, Italy and Spain.

As Secretary-General of CARICOM, Mr. Carrington also served as Secretary-General of CARIFORUM (comprising all the Member States of CARICOM except Montserrat and comprising the Dominican Republic).

EVERYDAY LAW – Prerogative of mercy - Print Version

By: Cecil McCarthy

Source: Nation News

Published: August 4, 2010

IN LAST week’s article I discussed the doctrine of legitimate expectation as applied by the Caribbean Court of Justice in the case of Attorney General and others v Jeffrey Joseph and Lennox Boyce (“Joseph and Boyce”).

I will be returning to the subject of legitimate expectation in future articles.

However, in today’s column I wish to discuss the other significant issue that arose for determination in Joseph and Boyce; that issue is whether the prerogative of mercy by the Barbados Privy Council was subject to judicial review having regard to section 77(4) of the Barbados Constitution which provides as follows:

“The question whether the Privy Council has validly performed any function vested in it by the Constitution shall not be inquired into by any court.”

Charged jointly

In Joseph and Boyce, the facts were that Joseph and Boyce and two other men were charged jointly with the murder of a young man who was beaten to death. The four accused were given the option of pleading guilty to the lesser charge of manslaughter.

The other accused opted to plead guilty of manslaughter. Joseph and Boyce refused this offer and stood trial for murder, and were both convicted and sentenced to death. Their appeals to the Court of Appeal and the Privy Council were dismissed.

They petitioned the Inter-American Commission for Human Rights, alleging that Barbados violated its obligations under the American Convention of Human Rights.

Soon after the petitions were filed, the Barbados Privy Council (the body charged with the responsibility of advising the Governor General on the exercise of the prerogative of mercy) confirmed a previous decision not to recommend commutation of their sentence.

As a result, death warrants were read to Joseph and Boyce who then began proceedings alleging that the threatened execution was in contravention of their constitutional rights.

The CCJ held unanimously that the exercise of the prerogative of mercy was reviewable notwithstanding Section 77(4) of the Constitution referred to above.

One of the bases for review of the prerogative of mercy was procedural unfairness, which in the court’s view, was established in the case of Joseph and Boyce.

In the Third Edition of his book Commonwealth Caribbean Public Law, Professor Albert Fiadjoe of the University of the West Indies commented on the CCJ’s decision in respect of the reviewability of the prerogative of mercy in the following terms:

“This decision thus puts the nail in the argument which prevailed in 1966 when the Barbados Constitution became law – namely, that the exercise of the prerogative of mercy was not judicially reviewable, and that ousting the jurisdiction of the court could be valid.

“Thus, the Constitution would have been premised on the orthodox view that there was no possibility of the court’s powers under section 24 being applicable to any exercise of the prerogative of mercy, which was the exclusive preserve of the Governor General acting as directed by the Barbados Privy Council.

“But the court now says as did the Privy Council in Neville Lewis that, in the light of modern developments, the exercise of the prerogative of mercy is judicially reviewable and is not ousted by Section 77(4).”

Section 77(4) is an example of what is referred to as an “ouster clause”, a clause which seeks to exclude the court from reviewing the exercise of some power by a state body or official.

The response of the CCJ was that it will not be deterred, like previous decisions of the courts, by the presence of such a clause from inquiring into whether a body has performed its function in breach of fundamental rights guaranteed by the Constitution, and in particular the right to procedural fairness.

The decision of the CCJ is very important for “death penalty jurisprudence”. It gives a condemned man another lifeline, which can be of great significance when one considers the strict five-year time-line that has been established by the decision in Pratt and Morgan.

•Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, The Nation, Fontabelle, St Michael. Send your email to cnmc@caribsurf.com

Don’t blame the people for the Caribbean’s failures

Source: The Voice SLU

Publication Date: June 10, 2010

Some leaders of countries of the Caribbean Community and Common Market (CARICOM) often suggest that the slow progress of regional integration is due to a lack of “trust and understanding” among the people.

Certainly this was a view expressed by Bruce Golding, the Prime Minister of Jamaica, at the opening of the 31st CARICOM Heads of Government Conference in Jamaica. Interestingly Golding also said that integration also requires “building trust and understanding” among the leaders themselves.

He is right on both counts. But, if the people of CARICOM countries lack trust and understanding of the benefits of regional integration, the blame lies with the leaders.

Over the last 20 years of CARICOM’s existence, the people of the region have been fed a regular diet of CARICOM bashing in the media. That bashing was – and is – conducted by CARICOM leaders. The media simply report it.

Instead of resolving trade disputes at the table of quiet diplomacy, government representatives choose to amplify them with heated exchanges through the media, creating the impression that CARICOM’s trade arrangements don’t work fairly. Yet, the CARICOM Treaty provides for the amicable settlement of disputes through consultation with recourse to the Caribbean Court of Justice only a last resort.

New governments in CARICOM do not appear to be immune from the virus of injudicious public statements. Thus, the new Prime Minister of Trinidad and Tobago, Kamla Persaud-Bissessar, declared publicly that her country was not an “ATM machine” from which other CARICOM countries could draw money as they want it.

Such statements would not endear Trinidad and Tobago to the rest of the CARICOM countries, nor would it encourage citizens of Trinidad and Tobago to regard other CARICOM citizens with anything but contempt.

In reality, the relationship between Trinidad and Tobago and other CARICOM countries, particularly the smaller nations of the Organisation of Eastern Caribbean States (OECS), is far more mutually beneficial than is conveyed by the analogy of the “ATM machine”. Other CARICOM countries are a lucrative and protected market for Trinidad and Tobago’s manufactured products and financial services under the CARICOM Treaty. Were it not for their membership of CARICOM, these countries could purchase most of what they buy from Trinidad and Tobago at cheaper prices elsewhere in the world.

Barbados, too, benefits significantly from the export of goods and services to CARICOM. It is Bardados largest area for exports. This is one of the reasons why the Barbados government was concerned with the intention of the previous Patrick Manning government in Trinidad and Tobago to forge an economic union with the members of the OECS.

The point is that membership of CARICOM is not a one-way street, nor indeed is it a one-way street only for the marketing of goods and services. Of equal importance is the bargaining strength which collective negotiations in the international community bring to each of the countries individually.

But, little credit is given to the benefits of regional cooperation. It is seldom, if at all, mentioned by governments in their parliaments or in their media conferences.

The impression left in the minds of the people is that CARICOM is a useless organisation that brings no benefit to them, and that they would be better off shedding it and dealing with the world on their own.

Of course, leaders know better.

That is why none of them have abandoned CARICOM, and more recent leaders, such as Bruce Golding, have significantly altered the almost hostile attitude to CARICOM with which they started out.

There are a multitude of crucial matters that CARICOM countries cannot manage on their own and for which each of them needs to be bolstered by the collective effort of all. Dealing with drug trafficking is one example. There are myriad others such as coping with the effects of natural disasters and bargaining with the international community.

Serious observers within the Caribbean and many more, including governments and international financial institutions, had hoped that the recent summit would address two matters with the gravity and urgency they deserved and so reinvigorate regional integration and reignite interest – if not passion – for it among the Caribbean people and the wider world.

The first is the twin issues of governance and implementation of decisions by CARICOM. Having laboured over the matter since 1992 when the West Indian Commission recommended the creation of a Caribbean Commission (similar to the European Union Commission), leaders pondered it yet again at the Jamaica meeting only to appoint a fifth group to consider the matter and report in February of next year. This new group consists of seven Heads of Government – all of whom are busy with the demands of their domestic constituencies. They are to be advised by a technical group who will have to be miraculously inspired to generate anything more sound than the numerous studies already produced on this matter.

What is certain is that the leaders do not want a Caribbean Commission similar to the European Commission. They have said so. It is reported that they are toying with the idea of a Council of Ambassadors similar to the weak mechanism adopted by the members of the OECS in their yet to be operationalised Economic Union Treaty. Such a mechanism – nationalistic in its composition and representation – would be nothing more than a further layer of delay in decision-making. It would have to await the consent of the most reluctant country to proceed.

The second issue on which urgent action was reasonably expected from the Jamaica summit was a plan to recover from the global financial and economic crisis.

A flame of hope flickered momentarily when the Managing Director of the International Monetary Fund (IMF), Mr Dominique Strauss-Kahn, “agreed to review the issue of special and differential treatment” for Caribbean’s small states.

But, no CARICOM government alone and not all of them collectively can turn Strauss-Khan’s “review” to “commitment”. CARICOM requires the best brains in government, the private sector, the trade union movement and the academic community from throughout the region to devise a plan that could command international respect and action.

It would have been hugely beneficial if the Conference had mandated the assembly of such a Caribbean team under a High Representative (otherwise known as a Commissioner) tasked to produce a plan using as a basis the work of three separate task forces that governments commissioned over the last year. Alas, this did not happen.

The people of the Caribbean remain caught in a long tunnel of stagnation with no end in sight. They should not be blamed for the region’s failures.

EDITORIAL- Mr Golding and the CCJ

Published: Thursday | June 17, 2010

Source: Jamaica Gleaner

It is perhaps more than symbolic that the Jamaican authorities had no objection that Governor General Sir Patrick Allen this week administered the oath of office to Professor Winston Anderson as a judge of the Caribbean Court of Justice (CCJ), and that Prime Minister Bruce Golding spoke in appreciative, though measured, terms of the performance of the CCJ in its five years.

The decisions of the court, Mr Golding said, had inspired confidence and the justices in their rulings had "sought to lay a foundation on which the future of the court can be built".

If we are right, Mr Golding's posture had to do with more than the fact that Justice Anderson, until lately the executive director of the Caribbean Law Institute in Barbados, is a Jamaican of whom the prime minister is understandably proud.

It seems likely that Mr Golding will at next month's summit of Caribbean Community (CARICOM) leaders indicate that his government has completed its re-evaluation of Jamaica's absence from the court and is now ready to begin to plan its accession. That is the difficult bit.

Vehement opposition

The governing Jamaica Labour Party (JLP), under Golding's leadership and before, used to be vehemently opposed to the CCJ in its role as the court of last resort in criminal and civil matters.

Although they did not always express it this frankly, an underlying theme of those who opposed the court was mistrust for the moral fibre and the intellectual and jurisprudential acumen of regional judges. The more openly expressed concern, however, was for the independence of the CCJ, which the party continued to advance even after it was clear that the court was insulated against political intrusions.

Mr Golding's party guided a successful constitutional challenge at the Privy Council against Jamaica's participation in the CCJ as was then contemplated. The PM, though, would have had his mind concentrated by last October's complaint by Lord Nicholas Phillips, the chief justice of Britain's new Supreme Court, that Privy Council cases occupied too much of the time of his judges. He hinted at farming out some of these cases to judges of lower courts.

The JLP's retreat from its former positions may cause Mr Golding political discomfiture. More problematic, however, is how he manages the accession to the CCJ - assuming this is the course being contemplated - given the Privy Council's ruling that the CCJ first has to be constitutionally entrenched before it can be a superior court to Jamaica's Court of Appeal. This would require special parliamentary majorities and, ultimately, a referendum.

Standing Parliamentary committee

That seems doable. The People's National Party's is supposed to be a strong supporter of the CCJ, which it had a major hand in fashioning when it formed the government. But strange things happen in politics.

Which is why we repeat our suggestion for the establishment of a standing parliamentary committee on security, legal and justice matters, through which there can be constant cross-party dialogue on critical issues - including the CCJ. Additionally, there is probably the need for a summit between Mr Golding and Opposition Leader Portia Simpson Miller to start to thaw the political freeze that has continued for too long.

Additionally, Mr Golding should unveil any new thinking on the CCJ to the Jamaican people before he takes it to CARICOM.

On The Other Hand - Mandatory death penalty

Published on: 5/23/2010. Source: Nation News

BY PETER LAURIE

LET'S CLEAR UP some misconceptions about Barbados' mandatory imposition of the deathpenalty for murder and the Inter-American Courtof Human Rights.

First, the facts.

The American Convention On Human Rights hastwo competent organs to ensure that the provisions of the convention are respected: the commission,which investigates alleged abuses of human rights,and the court, which is the authoritative interpreterof the convention.

Barbados signed the convention in 1978, ratifiedit in 1982, and accepted the jurisdiction of the court in 2000, thereby undertaking to abide by the convention and the court's rulings.

Article 4 of the convention states that "every person has the right to have his life respected . . . .No one shall be arbitrarily deprived of his life".

Nevertheless, Article 4 allows states parties that have maintained the death penalty to apply it, subject to certain restrictions.

The issue between the court and Barbados, however, is not the death penalty.

The issue is the finding of the commission, agreed to by the court in a landmark judgment in June 2002, that mandatory imposition of the death penalty for murder constitutes an arbitrary deprivation of life and is therefore a violation of Article 4.

The argument of the commission and court, whether you agree with it or not, is straightforward and reflects a growing international consensus.

They maintain that because execution of the death penalty is irreversible, the state imposing the penalty must observe the strictest and most rigorous application of judicial guarantees to ensure those guarantees are not violated and a human life is not arbitrarily taken as a result. The mere existenceof these guarantees in a state is not enough.

One must be satisfied that the standards of these laws are rigorously applied in each and every case.

And here is the crux of the issue. The mandatory imposition of the death penalty on each individual guilty of murder "treats all persons convictedof a designated offence not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty".

Moreover, the judge is robbed of all discretionas to whether the death penalty is the appropriate punishment or not in the specific circumstancesof both the act and the offender. The judge is mandated to impose the death penalty, thus excluding both the possibility of determining individualized sentences arising from mitigating circumstances, and of creating a rational and proportional relation between the offender, the crime and the punishment.

Consequently the commission and the court have held that the imposition of the mandatory death penalty in such circumstances renders it an inhuman and unjust punishment, constituting a violationof Articles 4(1), 4(2), 5(1), 5(2), and 8(1) in relationto Article 1(1) of the convention.

Ironically, the mandatory imposition of the death penalty has led juries in the Caribbean occasionallyto acquit offenders accused of murder, even whenthere was a preponderance of evidence in favourof guilt, because jurors considered death to bean excessive punishment in the circumstances of the particular case.

Another irony is that if we did not havein our Constitution the "savings clause" that protects inhumane, colonial, laws from constitutional challenge, our own courts would undoubtedly find mandatory imposition of the death penalty unconstitutional.

The Government of Barbados has a choice:

Do the right thing, abolish mandatory sentencing and trust in the wisdom of our judges to imposethe appropriate sentence.

This will preserve Barbados' international reputation as a sophisticated, enlightened democracy fully observant of human rights - an invaluable asset in a country seeking to be a global centrefor tourism and international business.

Or do the ignoble thing, listen to the yahoosamong us, denounce the convention and make Barbados look like some poor-rakey turd-worldstate insecure in its sovereignty.

* Peter Laurie is a retired diplomatand a commentator on social issues.

Belize to join Caribbean Court of Justice, leave colonial-era British Privy Council

Date Published May 11, 2010

Source - Associated Press

(AP) — The government of Belize says it will stop sending appeals cases to the colonial-era British Privy Council starting June 1.

The order announced by the office of Prime Minister Dean Barrow brings Belize's appeals processes into line with the country's constitution.

The Trinidad-based Caribbean Court of Justice will hear all Belize court appeals filed after May 31.

Barrow's office said Tuesday the change is "a major landmark" for the nation.

The London-based Privy Council long served as the highest court of appeal for many former British colonies. But many of those nations are removing themselves from the jurisdiction of the council, which is made up of members of Britain's House of Lords.