House vets replacement of Privy Council with CCJ

Source: Belize News

Published: February 23, 2010

The House of Representatives on Friday approved the replacement of the Privy Council, the final appellate court in Belize, with the Caribbean Court of Justice (CCJ).

The legislative backing for the change comes from amendments to the Belize Constitution (in the 7th Amendment Bill), as well as the revocation of the Privy Council Act.

Even though Prime Minister Dean Barrow had signaled the removal of the dual citizenship portion of the constitutional amendment, in response to fierce and vocal opposition to it on the home front, the proposal, nonetheless, consumed a large part of the debate.

The Opposition People’s United Party was castigated from across the floor for its position to not support the dual citizenship amendment, and was told that they have no regard for Belizeans in the “diaspora.”

Prime Minister Barrow commented that the dual citizenship feature has already been introduced into the OECS’ (Organization of Eastern Caribbean States) constitution, and was there in Belize’s pre-independence constitution.

As the law now stands, a person born in Belize who acquires citizenship in another country cannot run for office. The ruling party claimed that the amendment was crafted to give these Belizeans an opportunity to actively engage in governance, to become representatives in the House, or to be appointed to the Senate. However, there were many Belizeans who had questions over where the allegiance of a person with dual nationality would lie.

Regarding the replacement of the Privy Council as Belize’s final appellate court, the amendment to the constitution and the repealing of the Privy Council Act was done, said Barrow, to implement the CARICOM agreement establishing the CCJ.

The other aspect of the constitutional amendment had to do with the appointment of an Attorney General for Belize.

Under existing laws, the Attorney General must come from either the Senate or the House; however, the amendment would enable the Prime Minister to choose a private practitioner to fill the post, without requiring that person to be a member of either houses of Parliament.

The Attorney General, a trained lawyer, himself weighed in and supported the amendment. Wilfred “Sedi” Elrington, who also serves as Minister of Foreign Affairs and Foreign Trade, said “…if the Prime Minister [is able] to bring in independent people, people who had already done well, who are competent, who are capable, experienced as Ministers, then we wouldn’t have a problem with corruption.”

Elrington also claimed that only about 2% of all attorneys are “really good” and “really capable of, in fact, doing a good job [for] their clients.”

Despite current speculation that the post would be given to Lois Young, whose firm Prime Minister Barrow said Friday is the government’s top choice, giving value for money, Barrow had told us in a prior interview, when the amendment was first publicized, that he was not carving out the provision for Ms. Young.

In June 2009, he said thathe has no intention of changing the current AG, Wilfred Elrington, but he is making the legislative changes to allow the Government to select from the ranks of the practitioners a top professional who doesn’t want to be caught up in the “hurly burly” of the business of the House and Senate.

Said Musa, former Prime Minister and member for Fort George, questioned Barrow on whether he was moving the system from a parliamentary to a republican system:

“The Attorney General, in the final analysis, like any other Minister, must be answerable to Parliament if it is to be a parliamentary democracy. ...So where is the representative democracy? Where is the parliamentary democracy once you appoint an AG from outside?”

The constitutional amendment, which covers the provisions for the CCJ and the appointment of the Attorney General, went through its third reading with approval, but has yet to be passed by the Senate.

Belize clears way for CCJ
BBC Caribbean News in Brief

Source: Stabroek
Published :February 24, 2010 - In Regional News


The Belize senate was expected to approve legislation allowing the country to adopt the Caribbean Court of Justice (CCJ) as its final appellate body, when it met yesterday.

Lawmakers approved the Seventh Amendment to the Constitution last Friday, allowing the country to replace the London-based Privy Council with the CCJ.

If approved, Belize will become the third Caricom member state to adopt the CCJ both in its original jurisdiction and a final court of appeal.

Barbados and Guyana are the only other Caricom states to recognise the court in its criminal appellate jurisdiction, since its launch in 2005.
Grenada clears the air on Mr Vegas

The Grenada government has been explaining the government’s reasons for denying a work permit to Jamaican dancehall artiste, Mr Vegas.

Mr Vegas, whose real name is Clifford Smith, was scheduled to perform in St George’s on Saturday, but did not receive permission from the government.

Labour Minister Karl Hood says while the ministry has no difficulty with regional performers coming to the island, they need to follow proper procedures.

Mr Hood said that some promoters have continued with last minute requests for work permits, even though they have been advertising their events for months.

“We will not therefore be responsible for promoters who are denied permits based on their compliance with our procedures,” Mr Hood said.

Local official believes CCJ affected by political interference
Source:Dominica News Online Published: 2/22/10

Dominican Justice Irving Andre says the Caribbean Court of Justice (CCJ) has been affected by political interference, opposing the view of an official of the Caribbean law institute.

Executive Director of the Caribbean Law Institute Professor Winston Anderson last week dismissed suggestions that political interference may affect the CCJ, but Justice Irving Andre now contends there’s evidence of political interference in the court of appeal.

“There were suggestions that our own Sir Brian Alleyne did not receive the position of the chief justice on account of political observation from one of the regional leaders, and there has been for a number of years suggestions that the judicial system is not entirely impervious from influences from the political sphere,” he said.

“At this point, there is a strong narrative, suggesting based on historical evidence, that the court has not been entirely immune to that type of influence in the past,” Justice Andre underscored.

Justice Andre believes the onus is on the “powers that be” to ensure the final appeals court chosen for the region is free of political interferences.

“I think those who are making a significant contribution towards ensuring that we have a judicial system…which is second to none … and they have taken steps to try to ensure that when this thing becomes a reality that the question of political interference does not become an impediment towards the realization of justice in the Caribbean.”

Lecture - The Role of the CCJ

Source: Dominica News Online

Published 17.2.10

The University of the West Indies Open Campus Dominica, in collaboration with the Dominica Bar Association, is pleased to announce another public lecture on a topical matter in the lives of the people of the region and Dominica.

The Lecture will take place on Thursday, February 18, 2010 commencing at 6:00 pm at the Conference Room of the Garraway Hotel in Roseau, Dominica. Two distinguished academics from the Law Faculty of The University of the West Indies will make presentations on the acceptance of the Caribbean Court of Justice (CCJ) in its appellate jurisdiction. The presentations are part of a regional information effort regarding acceptance of the CCJ throughout the region.

Professor Winston Anderson will present on Dominica’s delinking from the Privy Council and accepting the CCJ in its appellate jurisdiction and Professor Simeon C R McIntosh’s presentation will be on the philosophical justification for the court. Jointly, the paper is titled, “Constitutional Authorship and the Inscription of Caribbean Nationhood: The Role of the CCJ”.

A former Dean of the Faculty of Law at the UWI Cave Hill Campus in Barbados, Professor McIntosh has taught courses in Conflict of Laws, Federal Jurisdiction, Constitutional Law, Remedies, Jurisprudence, and Constitutional Theory and Civil Procedure. He holds the Master of Laws (LL.M.) degree from the Columbia University School of Law, New York N.Y.; the Juris Doctor (J.D.) from Howard University School of Law, Washington D.C.; and the B.A. in English from York University, Toronto, Canada.

Professor Anderson in 1999 became Senior Lecturer at the University of the West Indies on indefinite tenure. He was appointed Executive Director (Ag) of the Caribbean Law Institute Centre for the academic year 2000-2001.

He was appointed to the position of the General Counsel of the Caribbean Community Secretariat on secondment from the University of the West Indies, 2003-2006. In 2006 he was appointed Professor in the Faculty of Law, University of the West Indies. Professor Anderson’s major publications include, The Law of Caribbean Marine Pollution, published by Kluwer Law International, The Netherlands, 1997; Elements of Private International Law (2003, Caribbean Law Publishers); and Private International Family Law (2005, Caribbean Law Publishers).

Following his return to the Faculty of Law in 2006, Professor Anderson was appointed Executive Director of the Caribbean Law Institute Centre, a position he holds at present.

Jamaican professor newest CCJ judge Friday, February 5th 2010 Source: http://www.trinidadexpress.com/index.pl/article_news?id=161591593

JAMAICAN Prof Charles Anderson is the newest judge of the Caribbean Court of Justice (CCJ), a release from the Regional Judicial and Legal Services Commission stated yesterday. Anderson is scheduled to replace current CCJ Judge Duke Pollard, who is due to retire on June 10. He is expected to assume duties on the day of Pollard’s departure from office. Anderson lives in Barbados and holds a law degree from the University of the West Indies (UWI) and a Doctorate in Philosophy (PhD) in international and environmental law from the University of Cambridge. He has been called to the Bar successively in England, Barbados and Jamaica. For most of his career, Anderson has been a member of the Law Faculty of the University of the West Indies (UWI). He was appointed lecturer in 1994, senior lecturer in 1999 and was made professor in 2006. Anderson spent a year as a research fellow at the University of Sheffield, between 1994 and 1995, and a year as a senior lecturer on fellowship at the University of Western Australia in 1996. Anderson is currently the executive director of the Caribbean Law Institute Centre (CLIC).

Belize to abolish appeals to the Privy Council

Hon. Wilfred Sedi Elrington,

“By the time we have reassembled here next year for the opening of the law year for the year 2011, Belize should have abolished appeals to the Privy Council and accepted the Port of Spain based Caribbean Court of Justice as its final court of appeal.”

Source: http://7newsbelize.com/sstory.php?nid=15999

Published: posted (January 18, 2010)

CARICOM IN 'COMA'

by RICKEY SINGH

Source: Jamaica Observer

Published Sunday, January 17, 2010

EVEN as the Caribbean Community Secretariat remains intensely engaged in commendable regional humanitarian aid efforts for earthquake-devastated Haiti, the prognosis for any significant advancement in Caricom's major programmes during the first half of this second decade of the 21st century does not appear encouraging.

Indeed, with a perceived trend towards a narrow nationalism, masked in a few cases as new approaches in trade, immigration and economic policies, there lurks the danger of an undermining of the growth of a once robust regional spirit to make the Single Market and Economy (CSME) a reality.

At present, while the Caricom Secretariat is preparing for the first Inter-Sessional Meeting of Heads of Government for this year, scheduled for Dominica next month, or early March, there are serious misgivings about the way forward for the CSME -- the Community's flagship project originally targeted for inauguration in 2015.

In November 2009, one of the foremost collaborators in the regional enterprise that is Caricom, Sir Shridath Ramphal, had painfully noted in an address to a forum of distinguished West Indians in Port of Spain on "Regional Progress and Challenges" that "As with West Indies cricket, regionalism can be damaged if we forget our trust and are ruled by short-term fixes. We did not become independent of Britain to scatter our regional heritage to the winds of passing fortune. But we are being tempted to do just that, and Caricom is blowing in the wind..."

A former long-serving Commonwealth secretary general and chancellor of the University of the West Indies warned:

"The CSME has lost credibility. Shame overwhelms us as we create the Caribbean Court of Justice and cling, unwanted, to the Privy Council. If things continue to fall apart like this, the centre will not hold. Caricom is comatose; and without intensive care a coma can precede death."

Ramphal's "straws"

Asked last Wednesday (before the announcement of Haiti's earthquake disaster) whether he still felt the same way about Caricom as he did at last November's symposium in Port of Spain, Ramphal told this columnist, "Unfortunately I still do", then quickly added:

"If I am to clutch at straws I would derive hope from the recent initialling of the treaty to establish an OECS Economic Union; and the potential for deeper cooperation between Jamaica and Trinidad and Tobago, as exemplified in current negotiations involving the operations of Air Jamaica..."

At Caricom's upcoming inter-sessional in Roseau, Barbados Prime Minister David Thompson is expected to give a report on the CSME Convocation he had hosted last October.

It was an occasion when representatives of both the region's private sector and labour movement did not spare criticisms of what they continue to view as yawning gaps between official rhetoric and actions to generate public confidence that arrangements for advancing the CSME are indeed being seriously pursued.

A notable absentee from the CSME Convocation was the regional economist, Professor Norman Girvan, author of the seminal report on "Towards a Single Economy and a Single Development Vision" that outlined a "road map" for strategising and methodical implementation.

To say that Girvan has himself become disillusioned over the lack of necessary collective approaches to implement the CSME project -- unanimously endorsed by the Community Heads of Government -- would be to recall a similar discouraging example as it relates to Professor Vaughn Lewis's report on the need for a new and more effective form of governance of Caricom affairs.

Now heading towards its 37th year of existence on July 4, 2010, Caricom remains divided on how and when to introduce what leading political and economic scholars, eminent private sector executives and others regard as a necessary new administrative architecture.

At its core -- as long recommended in the 1992 report of The West Indian Commission that was headed by Sir Shridath -- could be a team of eminent Caricom nationals (either three or five) armed with executive authority and focused on systematic implementation of unanimously adopted decisions by the Heads of Government.

If it's not a case of a seeming reluctance by the Community's political directorate against sharing power with leading regional technocrats, or a preference to hide behind expedient interpretations of "national sovereignty", then the Community's leaders should come clean in 2010 on what are the main barriers to the introduction of a more relevant system of governance of Caricom.

Disappointments

Last year, when there were a lot of "special meetings" of Caricom ministers and leaders, as well as task forces with overlapping mandates, to find practical responses to the negative impact on regional economies of the global financial and economic crisis, we were told of plans for a special delegation of Heads of Government and top fiscal and economic experts to engage the international financial institutions in Washington.

Well, the year ended and no such engagement is known to have occurred.

We were also informed of an expected summit of Caricom leaders with President Barack Obama before year-end. No such meeting took place and none is yet carded for any time in 2010.

The region's people are aware of developments that resulted in the miniaturising of the once high-profile Caribbean Regional Negotiating Machinery (CRNM).

Less awareness prevails about the status quo of either CSME-readiness arrangements or the extent of progress by the special unit in the Community Secretariat responsible for implementation arrangements for the Economic Partnership Agreement (EPA) entered into with the European Union in 2008.

The first decade of the 21st century ended last year with ongoing disappointments that no progress of significance was made on the much-publicised people-focused project of intra-regional free movement, particularly as it relates to skilled Community nationals. The issue remains enmeshed in immigration controversies.

The current immigration situation in Antigua and Barbuda, for example, appears serious enough to warrant some direct action by the governments of Jamaica and Guyana with that of the Baldwin Spencer administration in St John's, as there have been repeated reports of unfair and inhumane treatment of their nationals.

At the symposium in Port of Spain on "Regional Progress and Challenges" referred to earlier, Sir Shridath Ramphal had expressed the hope that the results of that event could "help bring us (the region) to our senses...".

Alas, that hope has often been variously expressed at successive Caricom Heads of Government.

It would, therefore, be quite refreshing to see Caricom leaders demonstrate a new readiness to advance the goals of our economic integration movement at their coming 31st annual summit in July - venue is still undecided.

Hopefully this will bring closure to the multiplicity of negative features and occurrences during the second half of the first decade of this 21st century to inspire hope for a significant change, at least during the first half of this second decade when the CSME is scheduled to be operationalised.

CURIOUS JUDICIAL DEVELOPMENTS

BY RICKEY SINGH Observer Caribbean correspondent

Source: Jamaica Observer

Friday, January 08, 2010

There is a growing public concern in Barbados over the surprising disclosure last weekend of Chief Justice Sir David Simmons' decision to retire on his 70th birthday, this coming April 28.

There has been no official response as yet why Sir David, who became Barbados' 12th Chief Justice on January 1, 2002, was not given the 'conventional nod', accorded his immediate post-independence predecessors, to remain in office for an additional two years -- until age 72.

Sir David himself has declined to confirm or deny that he tendered his retirement letter last week to Governor General Sir Clifford Husbands, after failing to receive an official communication for a constitutionally permissible two-year extension he was encouraged to seek.

A former attorney general and minister of home affairs of the previous Barbados Labour Party administration of then Prime Minister Owen Arthur, Sir David told this writer: "My retirement is irrevocable; and I do not wish to bring the judiciary of Barbados into any controversy... I have noted, as an independent observer, the controversies that have involved the judiciary of Trinidad and Tobago and I certainly do not wish that to happen here."

Nevertheless, Sir David's impending retirement as a consequence of the departure from the convention of extending the tenure of a chief justice on reaching the retirement age of 70, is likely to have more than ripple effects in local and regional judicial circles familiar with his varied performances over some 32 years in the legal profession and public life.

Moreso, perhaps, in Trinidad and Tobago where the distinguished Barbadian jurist has long been expected to be a likely candidate to succeed the distinguished Trinidadian, Michael de la Bastide, as president of the Port-of-Spain-based Caribbean Court of Justice (CCJ).

Sir David had played significant roles in the establishment and inauguration of the CCJ.

The president of the Barbados Bar Association, Queen's Counsel Leslie Haynes, has told this correspondent that while the media report on Sir David's retirement came as quite a surprise, he and his colleagues would first have to acquaint themselves with the circumstances before offering a public comment.

But two lawyers often in the news, Andrew Pilgrim and Robert 'Bobby' Clarke, had no reservations in separately questioning the failure to extend Sir David's tenure and in declaring why he deserves to remain as chief justice for another two years.

Of more relevance and significance, however, was the editorial in Tuesday's Daily Nation titled 'Saluting Sir David's Services'.

Accompanied by a cartoon caricaturing the chief justice toasting "here's to my retirement", the editorial noted that his retirement announcement would have come as a suprise for those who have been expecting him to remain for an extended two years.

The editorial went on to observe that whatever may be the factor, or factors that contributed to Sir David's decision to retire, his stepping down "after a most illustrious career in the legal profession, certainly opens an opportunity for his valuable experience to be available to the Caribbean Court of Justice..."

And there, perhaps, lies the rub. Certainly for Caricom's political directorate involved in the decision-making process of approving who gets the nod as CCJ president, based on recommendations from the Regional Judiciary and Legal Services Commission (RJLSC).

The presidency is the sole CCJ appointment in which Caricom leaders are involved. When the CCJ was inaugurated in April 2005 in Port-of-Spain, de la Bastide became its first president under employment provisions that point to a retirement age at 72.

However, by 2007, according to Tuesday's Nation editorial, the provisions were amended to increase the retirement age to 75. The terms of employment of president de la Bastide were also varied "to permit him to remain in office until the age of 75.

"But", added the editorial, "this decision by the RJLSC was done WITHOUT (my emphasis) involvement of the Heads of Government."

I have been reliably informed that, without prejudice, and cognisant of the competence and integrity of President de la Bastide, inquiries are now to be made, at Heads of Government level, about the processes that resulted in the extension of the incumbent president's tenure for retirement at age 75.

It would be interesting to learn which, if any, comes first -- an official explanation on the non-extension of Sir David's tenure as chief justice of Barbados; or, the change in the age of retirement of president of the CCJ from 72 to 75 that facilitated the distinguished de la Bastide.

Guyana seeking regional support to settle cement impasse
Published - Thursday, January 7, 2010
Source: Caribbean Net News

GEORGETOWN, Guyana -- Guyana is seeking to urgently resolve the impasse with the Trinidad Cement Limited on the removal of the common external tariff on cement imported from extra regional sources say foreign affairs minister Carolyn Rodrigues-Birkett.

The Foreign Minister said Monday that the matter, which is of importance to the entire Caribbean, would be raised at the next Council for Trade and Economic Development (COTED) meeting to be held here from February 4 to 9.

The matter is high on the agenda as it can have significant negative impacts on the local construction sector if not resolved urgently.

She has raised the matter with officials from other CARICOM states who are facing similar problems with the Trinidad-based cement company.

“I have been in discussion with several of my colleagues (Caribbean Foreign Ministers) and this hopefully, will be one of the first issues to be discussed at our next COTED and Guyana is looking to have this issue resolved in such away, that our business can continue, and our construction workers would not be hindered,” Rodrigues Birkett said.

Guyanese authorities had indicated that the removal of the CET from the commodity was based on national interest since the Trinidad-based company was unable to meet the demand from Guyana and the rest of the Caribbean.

“The issue of the CET on cement found itself on many occasions in the media and is something that is very very important to us to be sorted out… it would call for cooperation and collaboration with other member states as well and we are hoping we would be able to have a reasonable agreement in this regard,” Rodrigues explained.

TCL had moved to the Caribbean Court of Justice (CCJ) against Guyana and the CARICOM secretariat claiming that the removal of CET on cement from outside the region was illegal.

The Court ruled in favour of the company last year and instructed Guyana to reinstate the tariff. Guyana has abided by the ruling but will contest the decision.

Commonwealth lawyers must ‘build on grand achievements of the past’ – Ramphal

Source: The Commonwealth.org

15 December 2009

Former Secretary-General calls for reform of Caribbean legal system during anniversary law lecture

Shridath ‘Sonny’ Ramphal, former Secretary-General of the Commonwealth, used a lecture hosted by the Commonwealth Legal Forum last week to urge reform of Caribbean judicial structures.

Sir Shridath, offering his support to the newly-established Caribbean Court of Justice, called on Commonwealth countries with links to the British Empire to drop their right of appeal to the UK’s Privy Council, a centuries-old judicial and political body, warning that failure to do so would leave them “loitering on the doorstep of colonialism”.

He said: “Now that we have created our own Caribbean Court of Justice and done so in a manner that has won the respect and admiration of the common law world, it is an act of abysmal contrariety that we have withheld so substantially its appellate jurisdiction in favour of that of the Privy Council.”

‘Language, learning and law’

During the hour-long lecture to mark the 60th anniversary of the 54-member association, on 7 December 2009 at Marlborough House, London, UK, the Guyanese former Secretary-General touched on the abolition of slavery and the founding of the modern Commonwealth.

Sir Shridath, who served as Secretary-General between 1975 and 1990, said that “language, learning and law” were the three “most precious” elements of the association’s heritage.

But, calling on Commonwealth lawyers to “build upon the grand achievements of the past”, Sir Shridath hit out at the apparent “hesitancy” of Caribbean judges, lawyers and governments to support the Caribbean Court of Justice.

Just two Caribbean countries among 12 – Guyana and Barbados – have conferred the power of appeal to the CCJ, despite all signing a 2001 treaty establishing the court, he noted.

Sir Shridath, a former Attorney General of Guyana, meanwhile called on Caribbean governments to be “assiduous in demonstrating respect for all independent constitutional bodies”.

Death penalty issue

He added that the appeal court issue was further “complicated” by the issue of the death penalty, which is maintained by a number of countries in the region. Mr Ramphal said that the Privy Council had been “rigorous in upholding Caribbean appeals in death sentence cases”.

The Privy Council

Sixteen Commonwealth member states retain the UK’s Privy Council, a British body of political and judicial advisers to the UK head of state, as their final court of appeal. Appeal cases are heard by the council’s Judicial Committee, composed of senior British judges who also sit in the UK’s Supreme Court.

He continued: “Someday the Caribbean as a whole must accept abolition of the death penalty. I believe they should have done so already, but in a situation of heightened crime in the region popular sentiment has been reflected in political reticence.”

Sir Shridath’s comments follow those of Lord Phillips, Chairman of the Privy Council’s Judicial Committee and President of the UK’s Supreme Court, who in September attacked the “disproportionate time” he and fellow judges spend on Privy Council cases derived from Commonwealth countries.

‘An ideal world’

Lord Phillips, claiming that up to 40 per cent of the judges’ time was spent on Privy Council cases, said that “in an ideal world” such countries would instead establish their own courts of appeal.

Sir Shridath said that he backed Lord Phillips’ remarks, adding: “Many a Caribbean lawyer, many Caribbean persons, and at least some Caribbean government’s welcomed [Lord Phillip’s] urging.”

CARICOM: THE IDEAL OF GOOD GOVERNANCE - THREE PILLARS OF REFORM

SPEECH

Of

December 4, 2009

at

THE INSTITUTE OF POLITICS

By

Dr. Caleb M. Pilgrim

Last time I was here was on Friday 13^th. I thank Comrade Astor Watts for choosing a more auspicious date at the beginning of the holiday season, and Comrades Maycock and Hunte and you especially for inviting me and coming out to this lecture.

It is fitting that we should discuss today’s topic here at the DLP’s Headquarters insofar as the late Errol Barrow was a committed regionalist, the co-founder of CARIFTA and a co-founder of CARICOM. My arguments today centre on three (3) specific proposals:

1. A CARICOM Administrative Tribunal
2. A CARICOM Human Rights Commission
3. A CARICOM Ombudsman

PILLAR NO. 1

I have previously spoken of the need for a CARICOM Admin. Tribunal. Such a Tribunal would hear disputes between employees and the respective CARICOM Institutions, Associate Institutions, Organs or Bodies.

We first canvassed this idea of a CARICOM Administrative Tribunal around September 2007 before litigating the matter of Johnson v CARICOM, CCJ AR2 of 2008 (OJ), the second case filed under the Original Jurisdiction of the CCJ. As you know, the C.C.J subsequently ruled that it did not have jurisdiction to hear that matter, a case in which the Plaintiff, a Barbadian woman, alleged that her employer, a regional institution, had discriminated against her based on her Barbadian nationality in violation of Article 7 of the Revised Treaty of Chaguaramas establishing CARICOM and the CSME. Article 7 of the Revised Treaty expressly prohibits discrimination on the basis of nationality.

That ruling has serious implications for certain Barbadian employees. For, it is today the case that a fair number of Barbadians are employed in CARICOM, its Institutions and Associate Institutions in Barbados, e.g. CDB, CARDI, CARICAD, CMO, CMI, CTO, CDEMA. The need for a CARICOM Administrative Tribunal is evident in the fact that any CARCOM employee, like any other employee, could be faced at any time by an “adverse employment action”. By an “adverse employment action” I mean an action such an oral warning, a written warning, a suspension, and the ultimate – termination of one’s employment. Faced with an adverse employment action, the employee of a CARICOM Institution or Associate Institution may well today have no legal remedy, based on the Court’s dismissal of that matter, and absent amendment and radical revision of Chapter 9 (Disputes Settlement Provisions) of the Revised Treaty of Chaguaramas. I suggested such revision in an Open Letter to the Secretary-General, the Honorable Dr. Edwin Carrington, 2009 (Seabrook News July 7, 2009). At the regional and international level, an Administrative Tribunal would protect the rights of all Caribbean workers employed by CARICOM and its various entities.

Some of you will recall that the Hon. Arni Walters, Minister of Labour, in his talk “The Modernization of our Employment Relations – The Uses of Legislation and Social Dialogue” here at the Institute on October 16, 2009 spoke of the new Employment Rights Bill. Any such Bill, and eventually any such legislation, must include protections for the rights of ALL Barbadian employees. It must therefore include legal protections for all those who work for international institutions headquartered in Barbados, whether that be CXC, CEDA, CTO, EU, CMO, CARDI, IICA, even various diplomatic missions. My argument is that at the level of domestic law, the Barbadian employee, professional and non-professional, established and non-established, requires protection with respect to their employment rights, as a matter of domestic, internal law, when confronted by an adverse employment action.

At another level, the Barbados Government is party to a number of international treaties and conventions. At the level of public international law, Article 41 (1) of the Vienna Convention on Diplomatic Relations 1961 provides:

“without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving state”.[1]

It is therefore undisputable that Regional and International Organizations and even Diplomatic Missions have a duty to conform their behaviour to local law and regulations, to wit, Barbados’ Laws and Regulations.

Correspondingly,

“It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by act contrary to international law, committed by another state, from whom they have been unable to obtain satisfaction through the ordinary channels”[2].

Any Government therefore, has a duty to protect the legal and constitutional rights of its citizens. So too the Barbados Government has a duty to protect the legal and constitutional rights of ALL Barbadian citizens, no different from the Guyana Government’s duty to protect the interest of Guyanese nationals[3]. This goes for all CARICOM Member States.

The States in theory acts “parens patriae” to protect the interests of all of its nationals. It had such a duty in the case of Johnson v CARICAD and indeed Justice Hayton raised the issue in the proceedings why was the Barbados Government not a defendant in the proceedings before the CCJ based on the breach of that duty to protect the interests of the Plaintiff, a national of Barbados.

In the Draft Statute I proposed Article 1 stipulated that the Tribunal should be headquartered in Barbados. It now appears that CARICOM may well have accepted the need for an Administrative Tribunal. However, CARICOM’s history of implementing reform proposals has been somewhat checkered. Per P.J Patterson, implementation of decisions arising from conferences, summits, special meetings, inter-sessionals and other regional gatherings has long been a sticking point.[4] We clearly need such a tribunal. We believe that it should be located here. We ask your support in moving our government to lobby effectively for such implementation.

PILLAR NO. 2

I turn now to the question of a CARICOM Human Rights Commission.

The Vienna Declaration and Programme of Action on Human Rights 1993 adopted by the Vienna World Conference states, inter alia,

“All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms”.[5]

The subject of Human Rights is thus of critical importance in words of Justice Higgins,

“I believe profoundly in the universality of the human spirit. Individuals every where want the same essential things: to have sufficient food and shelter; to be able to speak freely; to practice their own religion or to abstain from religious belief; to feel that their persons is threatened by the state; to know that they will not be tortured, or detained without charge and that, if charged, they will have a fair trial. I believe that there is nothing in these aspirations that is dependent upon culture, or religion, or stage of development. They are as keenly felt by the African Tribesman as by the European City dweller, by the inhabitant of a Latin American Shanty Town as by the resident of a Manhattan apartment”.[6]

It is the case today that we all recognize a duty not to interfere in the internal affairs of the sovereign State, but Human Rights are a different matter. Human rights standards transcend questions of internal law.

Thus, we have seen an enormous post-war growth with respect to Human Rights internationally and a large number of international conventions which speak to the issue. For example, the Universal Declaration of Human Rights 1948[7], The International Covenant of Civil and Political Rights (ICCPR) 1966[8], The International Covenant on Economic Social and Cultural Rights (ICESCR) 1966[9], The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[10], The Convention Relating to the Status of Refugees 1951[11], The International Convention on the Protection of Rights of All Migrant Workers and Members of their Families 1990[12].

(Even the latter issue – the Protection of the Rights of All Migrant Workers, including the question of freedom of movement implicates Human Rights. The security of migrant workers within the Caribbean is a matter of concern for all of us and, logically, should form one of the bases for a CARICOM Human Rights Commission).

Several other Conventions have been enacted to protect Human Rights., e.g. The Convention on the Rights of the Child (CRC)[13], The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984[14]. The American Declaration on the Rights and Duties of Man 1948[15]. The American Convention on Human Rights 1969[16]. European Convention for the Protection of Human Rights and Fundamental Freedoms 1950[17]. (Other Protocols Relating To The European Conventions). The African Charter on Human and Peoples’ Rights (1981)[18].

All such international conventions, at a minimum, ensure citizens six (6) core human rights: (1) the right to life, (2) liberty, (3) the right to be free from discrimination, (4) the right to be free from torture and (5) the right to be free from other forms of cruel, inhuman and degrading treatment, and (6) the right to a fair trial.

It is the case that we in the Caribbean have international legal obligations under the OAS Charter, the American Declaration of Human Rights and the Inter-American Convention of Human Rights. The Caribbean States form a discrete group (CARICOM) within the OAS and therefore must be cognizant of their obligations to protect Human Rights under the various Conventions. A CARICOM Commission on Human Rights would hear complaints relating to Human Rights and act as the guarantor of all those rights espoused in the Charter on Civil Society adopted by the Caribbean Heads of Government on 19^th February, 1997.

The facts on the ground also urge the need to consider a CARICOM Human Rights Commission, e.g. one example - the torture and recent genital mutilation of a 14 year old by members of the Guyana Police Force (GPF) acting under colour of law; also the 449 killings recently reported on by the Guyana opposition parties calling for an investigation into these murders.[19]

Another example: The disappearance of 160 children in Jamaica and the inability of the Jamaica Government to resolve this issue also implicate Human Rights issues and possibly Jamaica’s obligation under the CRC. Such an issue would, in theory, be susceptible to enquiry by a CARICOM Human Rights Commission.

I need not raise at this point the issue of homophobia and violence, including murder, against homosexuals in Jamaica and elsewhere. Some years ago, Time Magazine described Jamaica as “the most homophobic place on earth”.[20] Time referred to the victim of an alleged assault by Buju Banton and a number of Banton’s associates, where the victim was blinded in one eye by kicks and blows from a board allegedly inflicted by Banton. Per Time, the case against Banton was subsequently dismissed on the grounds of lack of sufficient evidence.[21] Regardless of our own personal views, homosexuals – like anyone else – have a right to life as well as all other rights guaranteed under basic human rights conventions. Also, incitement to murder - Boom Bye Bye - is unlawful and wrong, by any legal standard.[22]

With respect to Haiti, as one commentator observed:

“few places in the world, and no places in the Western Hemisphere, are poorer. The international donor community classifies Haiti as a fragile state – the Government cannot or will not deliver core functions to the majority of its people, especially the poor. Haiti is a post-conflict state - one emerging from a coup d’état and political unrest. Others have variously characterized Haiti as a nightmare, predator, collapsed, failed, failing, parasitic, plutocratic, phantom, and virtual or pariah state.”[23]

Human Rights violations in Haiti should also be susceptible to the jurisdiction or competence of a Human Rights Commission (Compare the ECHR's and the IACHR's).

Little or no use of the IACHR may well derive from the fact that it is (1) relatively remote (2) our unfamiliarity with the Inter-American Human Rights System – I suspect that few Barbadian lawyers, not to mention the Barbadian public and most policy makers, are well acquainted with the Inter-American Human Rights System, (3) costs/expense and (4) language and culture, although interpreters are provided. It is still the case that we know relatively little about the dominant OAS/Latin American Culture.

What then would be the advantages of a CARICOM Human Rights Commission?

(1) Consonant with our international Human Rights obligations

(2) relatively easy access,

(3) cheaper and

(4) the obstacles related to language and culture would be minimized.

Hopefully, justice would not only be done but would be seen to be done. A CARICOM Human Rights Commission would/should aid transparency and the Rule of Law.

The fact that the IACHR’s appears vastly underutilized by Caribbean people is therefore not a justification for not having a CARICOM Human Rights Commission. The African Court of Human and Peoples’ Rights established January 25, 2004,[24] has so far heard no cases. Does this mean that there have been no violations of Human Rights in Africa over the past five (5) years? (Zimbabwe, Congo, Darfur, Women in Nigeria, Kano etc.) A CARICOM Human Rights Commission should easily answer criticisms such as - remoteness, inaccessibility, being user friendly, even the issue of personal and political intimidation.

It may well be that the CCJ Original Jurisdiction (underutilized) might have to be expanded to hear Human Rights cases – after ventilation/fact finding, investigation by a Human Rights Commission. There has been talk about a Human Rights Commission in Barbados. This has not yet come to pass for whatever reason. Given the exigencies of the circumstances, it is to be hoped that a CARICOM Human Rights Commission would not be lost on the distant horizon in a maze of endless red tape and bungling bureaucracy.

The question of a CARICOM Human Rights Commission was raised by Attorney Doreen Johnson in the Stabroek News, November 17, 2009, where she not only called for a Human Rights Commission but she also called for an Ombudsman for CARICOM. A copy of her article is enclosed in the materials given to you.

This brings me to the third Pillar.

PILLAR NO. 3

The question of a CARICOM Ombudsman (Compare EU Ombudsman – not suggesting that we practice “monkeyism”).

A number of advantages attach to the Institution of the Ombudsman. A CARICOM Ombudsman would look into allegations of maladministration, waste, corruption, mismanagement, and even issues pertaining to occupational safety and health etc.

A CARICOM Ombudsman would exercise residual jurisdiction over certain complaints e.g. complaints involving migrant workers where such disputes potentially fall between the cracks, and the migrant worker is unrepresented by national labour organizations. The office would be itinerant in nature like the CCJ.

The jury is still out with respect to the success of national integrity legislation in the Caribbean. In the Regional context, however, the Ombudsman could function within the ambit of a CARICOM Model Law on Integrity, Transparency and Accountability.[25]

The Ombudsman would not only report and give recommendations. His reports and recommendations would be sent to the Secretariat and Heads of Government Conference, not merely to be debated and discussed, but to be acted upon. His/her recommendations to have, once adopted by the Conference of Head of Governments, legal force and made binding on CARICOM and the member States.

To summarize the key points with respect to a CARICOM Ombudsman:

(1) There should be established an Office of the Ombudsman, who would be selected by ballot and empowered to receive complaints from any citizen of the Community including persons natural and juridical of any of the Member State.

(2) The Ombudsman shall have jurisdiction over complaints concerning instances of maladministration in the activities of all Community Institutions, Associate Institutions, Organs or Bodies.

(3) Where a prima facie case has been established, the Ombudsman shall conduct inquiries, either on his own initiative or on the basis of complaints submitted to him directly or indirectly, except where the facts alleged are sub judice or res judicata.

(4) Where the Ombudsman establishes maladministration, he shall notify the parties of his findings and give the offending party 30 days within which to remedy the delict. The offending party may file an objection to such findings within 30 days, failing which the Ombudsman’s recommendations shall become binding on the parties.

(5) The Ombudsman shall then forward a report on the matter to the Conference of Heads of Government and the Institution concerned. The Complainant shall also be informed of the outcome of the Ombudsman’s inquiries.

(6) The Ombudsman shall file a report annually with the Conference of Heads of Government detailing the outcome of all of his investigations.

(7) The Ombudsman shall be appointed by the Conference of Heads of Government for a period of five (5) years. (cf. Art. 205 (2) of the Revised Treaty of Chaguaramas, specifying the tenure of arbitrators as five (5) years).

(8) The Ombudsman shall be ineligible for reappointment.

(9) The Ombudsman may be dismissed by the Conference of Heads of Government where it is conclusively established that he no longer fulfils the conditions required for the performance of his duties or where he is adjudged to be guilty of serious misconduct.

(10)The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any official, CARICOM Institution, Associate Institution, Organ, Body, or related entity.

(11) The Ombudsman may not, during his term of office, engage in any other occupation, paid or unpaid.

(12) The Conference of Heads of Government shall, after seeking an opinion from the Secretariat and acting by majority, lay down the regulations and general conditions governing the performance of the Ombudsman's duties.

The Ombudsman shall be immunized and isolated from political interference, thus preserving his independence and impartiality. He shall be subject to removal ONLY by the CARICOM Heads of Government Conference, after an evidentiary hearing in which he would have had guaranteed to him similar rights as espoused in the ECHR e.g. right to a fair trial, right to he heard.[26]

CONCLUSION:

Sir Shridath Ramphal once remarked that:

“… Sometimes it seems as if small states were like small boats pushed out into a turbulent sea, free in one sense it, but without oars or provisions, compass or sails, free to perish or perhaps to be rescued and taken aboard a larger vessel”.[27]

Consider employees’ rights and basic, fundamental human rights in this context of a larger vessel, if you will.

In light of the foregoing, there should be a complete revamping and a new and improved Chapter 9 (Disputes Settlements Provisions) of the RTC.

We have urged that a CARICOM Admin. Tribunal be headquartered in Barbados. We clearly need such a tribunal. We believe that it should be located here. The CARICOM Human Rights Commission would similarly be located here along with the office of a CARICOM Ombudsman. Such a Human Rights Commission could only deepen respect for human rights in the region. An Admin Tribunal, a Human Rights Commission and an Ombudsman have in common shared ideals as to prompt and efficient administration of justice and adherence to the Rule of Law. For the last several years the Transparency International Corruption Perception Index (CPI) has ranked Barbados as the least corrupt among CARICOM States. The Transparency International 2008 Corruption Perception Index ranked Guyana among the 54 most corrupt countries in the world. This year, 2009, it ranked Barbados # 20, St. Lucia # 22, Dominica #34, T & T # 79, Jamaica # 99, Guyana # 126 out of the 180 states surveyed. We ask your support in moving our government to lobby effectively for implementation of the reforms we have raised.

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[1] Adopted 18 April, 1961, 500 U.N.T.S. 95

[2] Mavrommattis Palestine Concessions Case, Greece v U.K. (1924) P.C.I.J. Rep. Series A, No. 2 p12

[3] “New Immigration Policy given Barbados Bad Name”, Stabroek News, Statement by President Jagdeo re protection of Guyanese nationals.

[4]. Caribbean Net News, “Jamaican Prime Minister wants permanent political institution within CARICOM”, Tuesday, July 7, 2009.

[5] Adopted by consensus 25 June 1993

[6] Roslyn Higgins, Problems and Processes: International Law and How we use it, 1994 pages 96-97

[7] Adopted 16^th Dec., 1948

[8] Adopted 16^th Dec., 1966, 999 U.N.T.S. 171

[9] Adopted 16^th Dec., 1966, 993 U.N.T.S. 3

[10] (1980) 19 I.L.M. 33. See also CEDAW optional protocol 1999, (200) 7 I.H.R. 294 which provides a right of individual petition.

[11] 189 U.N.T.S. 150

[12] (1991) 30 I.L.M. 117

[13] (1989) 28 I.L.M. 1446. See also 2000 CRC Optional Protocols on Children in arm conflict and on the sale of Children, Child Prostitution and Child Pornography (2000) 8 I.H.R.R 288, 293

[14] Adopted 10 Dec., 1984 1465 U.N.T.S. 85. See also the Optional Protocol “2002” adopted 18 Dec., 2002 U.N.G.A. A/RES/57/199.

[15] O.A.S Res. XXX adopted by the Ninth Int’l Conference of American States (1948) to Human Rights on the Inter-American System, OEA/Ser.L.V/II.82 doc. 6 rev. I at 17 (1992)

[16] Adopted 22^nd Nov., 1968 OAS Treaty Series No. 36

[17] ETS No. 5 (protocol 11 ETS No. 155) as amended by protocol Nos. 3, 5, 8, 11 which entered into force on 21 Sept., 1970, 20 Dec., 1971, 1 Jan. 1990 and 1 Nov., 1998 respectively.

[18] Adopted 27 June 1981 1520 U.N.T.S 363

[19] Stabroek News , Nov. 18, 2009 “Dossier Ups Human Rights Probe Called – 449 Killings cited”

[20]. April 12, 2006.

[21]. Ibid. The article also states “ [i]n the past two years, two of the island’s most prominent gay activists, Brian Williamson and Steve Harvey have been murdered. Perhaps most disturbing, many anti-gay assaults have been acts of mob violence. In 2004, a teen was almost killed when his father learned his son was gay and invited a group to lynch the boy at his school. Months later, witnesses say, police egged on another mob that stabbed and stoned a gay man to death in Montego Bay. And … a Kingston man, Nokia Cowan, drowned after a crowd shouting “batty boy” … chased him off a pier.

[22]. “Artists such as Buju Banton, Bounty Killer, Beenie Man, Vybz Kartel, Movado, Elephant Man, Sizzla, Capleton, T.O.K., Anthony B and Shabba Ranks wrie and perform songs that advocate attacking or killing gays and lesbians”.. Wikipedia, “LGBT rights in Jamaica”. December 3, 2009.

[23]. Leon Charles, How Can the International Community Promote Security and Democracy in Haiti, Master’s thesis, Inter-American Defense College, Washington, USA, 05-08-2006, http://library.jid.org/en/thesis/Charles.pdf.

[24]. The Protocol to the African Charter of Human and Peoples’ Rights on the Establishment of an African Court on Human Rights, adopted at Ouagadougou, Burkina Faso, June 10, 1998, entered into force January 25, 2004.

[25] There have been a number of attempts at national legislation with respect to integrity legislation in the Caribbean e.g. Trinidad

[26] . See also the American Convention on Rights and Duties and the Inter-American Declaration on Human Rights, the OAS Charter.

[27]. Shridath Ramphal, Conference about General Security of the Commonwealth Nations, 1984.