Is The West Indies West Indian? (Part 2)

By Sir Shridath Ramphal


Nothing speaks louder of CARICOM’s current debilitation than our substantial denial of the Caribbean Court of Justice. The Bar Association of Grenada is host to this Lecture Series, which is a memorial to a great West Indian lawyer. It is poignant that the Inaugural Lecture in this series delivered in 1996 was entitled: Essentials for a West Indies Supreme Court to replace the Judicial Committee of the Privy Council as the final Appellate Court for Commonwealth Caribbean States and Territories. Fifteen years later, it is still apposite that I address this issue when we talk of being West Indian.

In 2001, twelve CARICOM countries decided they would abolish appeals to the Privy Council and establish their own Caribbean Court of Justice, serving all the countries of the Caribbean Community with both original jurisdiction in regional integration matters and appellate jurisdiction as the final court of appeal for individual CARICOM countries. As of now, only Guyana (which had abolished appeals to the Privy Council on independence, believing it to be a natural incident of ‘sovereignty’), Barbados and now Belize have conferred on the CCJ that appellate jurisdiction

Constitutional amendment is required for the abolition of appeals to the Privy Council. In practical terms, this means bipartisan political support for the CCJ. In Jamaica and Trinidad and Tobago (where the Court has its much sought after location) that political consensus does not exist – because the political party now in office in each of those two major regional jurisdictions has turned its back on its regional court. In St Vincent and the Grenadines, a referendum last year rejected the transference of appeals to the CCJ.

The situation has been complicated by the issue of the death penalty, on which the Privy Council, reflecting contemporary English (and EU) mores and jurisprudence, has been rigorous in upholding Caribbean appeals in death sentence cases. Someday, the Caribbean as a whole must accept abolition of the death penalty; I believe we should have done so already; but, in a situation of heightened crime in the region, popular sentiment has induced political reticence. Even so, however, the Privy Council’s anachronistic jurisdiction persists; and the Caribbean Court of Justice remains hobbled in pursuing its enlightened role in Caribbean legal reform.

It is almost axiomatic that the Caribbean Community should have its own final Court of Appeal in all matters – that the West Indies at the highest level of jurisprudence should be West Indian. A century-old tradition of erudition and excellence in the legal profession of the region leaves no room for hesitancy. As a West Indian I despair, as a West Indian lawyer I am ashamed, that the West Indies should be a major reason for the unwelcome retention of the Privy Council’s jurisdiction within the halls of the new Supreme Court in England. Having created our own Caribbean Court of Justice it is an act of abysmal contrariety that we have so substantially withheld its appellate jurisdiction in favour of that of the Privy Council – we who have sent judges to the International Court of Justice, to the International Criminal Court and to the International Court for the former Yugoslavia, to the Presidency of the United Nations Tribunal on the Law of the Sea (from Grenada); we from whose Caribbean shores have sprung in lineal descent the former and current attorneys general of Britain and the United States respectively.

As I recall this register of West Indian legal erudition, let me pause to pay tribute to the memory of Prof Ralph Carnegie who left us last month – a veritable icon of learning in the law and of service to it – and always a West Indian. As CCJ Judge Winston Anderson acknowledged at his funeral service, he died sadly without attainment of his vision of a fully functioning Caribbean Court of Justice, and fearful of the prospects for the legal monument he strove so hard to build. We owe him a more lasting memorial.

This absurd and unworthy paradox of heritage and hesitancy must be resolved by action. In law, as in ourselves, the West Indies must be West Indian. Those countries still hesitant must find the will and the way to end this anomaly, and perhaps it will be easier if they act as one. The truth is that the alternative to such action is too self-destructive to contemplate. The demise of the Court itself is not an improbable danger when in both Jamaica and Trinidad and Tobago the creation of a local final Court of Appeal is being canvassed. Loss of the CCJ will almost certainly frustrate progress on a Single Market and Economy -- the vision of Grand Anse. We will have begun tearing up the Treaty of Chaguaramas, whose Preamble recites “that the original jurisdiction of the CCJ is essential to the successful operation of the CSME”. If West Indian lawyers, in particular, remain complacent about this absurdity much longer – and I am afraid some are -- we will begin to make a virtue of it, and in the end dismantle more than the Court.

So grave and present is this danger that in August last, five West Indians to whom the region has given its highest honour, the Order of the Caribbean Community, took the unprecedented step of warning publicly “with one voice of the threat being posed to the Caribbean Court of Justice and the Community’s goals more generally”. I was among them. “We warn against these developments” we wrote, “which, as in an earlier era, could bring down the structures for advancing the interests of the people of CARICOM … carefully constructed and nurtured over many decades by sons and daughters of all CARICOM countries”. We were warning of the mire of despond we would stumble into if in this matter the West Indies ceased to be West Indian.

But let me add what we all know, though seldom say: to give confidence to our publics in their adoption of the CCJ as the ultimate repository of justice in the West Indies, our governments must be assiduous in demonstrating respect for all independent West Indian constitutional bodies (like the Director of Public Prosecutions) lest by transference, governments are not trusted to keep their hands off the CCJ. And Courts themselves, at every level, must be manifestly free from political influence and be seen to be sturdy custodians of that freedom. In the end, the independence of West Indian judiciaries must rest on a broad culture of respect for the authority and independence of all constitutional office holders – for the Rule of Law.

We must not forget that the structure of the CCJ goes further than does that of any court in the region, and most courts in the Commonwealth, in securing independence from political influence, much less political control. It is at least as free of such local control as is the Judicial Committee of the Privy Council; and freer than any national or sub-regional Court. West Indian people who want such a Court that is beyond the reach of politics must understand – and must be helped to understand – that they have it in the CCJ.

The question, therefore, cannot be avoided: is a regional political leadership that conjures with rejecting the CCJ doing so because it is beyond political reach? I cannot believe that; but, in my own judgment, with the Privy Council no longer a realistic option, the CCJ is the most reliable custodian that West Indians could have of the Rule of Law in the region. Despite this, will we once more, with the gains of oneness in our grasp, forego being West Indian?

The foregoing is an extract from the Eleventh Sir Archibald Nedd Memorial Lecture delivered by Sir Shridath Ramphal in Grenada on 28 January 2011.

February 9, 2011

Is The West Indies West Indian? (Part 1)

Is The West Indies West Indian? (Part 3)

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Caribbean integration is a mockery - CSME at a standstill

by Oscar Ramjeet


It seems as if Caribbean leaders are not serious about regional integration. The talk about freedom of movement is only lip service and there is no genuine effort for this to become a reality.

It is since 1989, more than 21 years since the CARICOM Single Market and Economy (CSME) agreement was signed and, although there has been a series of meetings throughout the region, very limited progress has been achieved to date, especially in the area of free movement of capital, skilled labour and the freedom to establish business enterprises anywhere in the Community.

It is rather surprising that former Barbados Prime Minister Owen Arthur, who had been travelling from island to island "preaching" regional unity and for governments to adhere to CSME, has criticised St Lucian-born Mara Thompson, for contesting the vacant seat in St John created after the death of the late prime minister.

The action by Arthur is very surprising and, in my view, very ridiculous because it defeats CSME and the regional integration process, but two friends of mine who are very familiar with regional affairs reminded me that Thompson, when he was prime minister, completely disregarded CSME when he took stringent, harsh and unconscionable action against non-Barbadians, especially Guyanese. He chased them out of the country and many of them did not get the opportunity to take their assets with them.

My friends said that you reap what you sow and said that the sins pass on to the third and fourth generation.

However, two wrongs cannot make a right and Arthur, who served three terms as prime minister, should know better because Mara is a citizen of Barbados and under the Constitution she can hold office as a lawmaker. The Constitution does not state that you have to be a Barbadian by birth. It states a citizen of Barbados and she has been a citizen for the past 21 years by marriage and residency.

Barbados Prime Minister Freundel Stuart has expressed surprise at Arthur's comments.

It seems to me that there is a dim future for the regional integration movement and recently distinguished commentators have been questioning if the CSME has a future. One is David Jessop, Director of the Caribbean Council. He spoke of the criticism meted out against CARICOM Governments and institutions for not ensuring the capacity and economic strength to create a sound regional economic base for investment and trade.

He also touched on the failure to implement regional and external agreements which, he suggests, indicates at best the absence of any coherent long term strategy and, at worse, irreconcilable divisions.

Sir Ronald Sanders, former Caribbean diplomat and well known commentator, suggested that the time had come to stop playing with the aspirations of the Caribbean people and argued that CARICOM needed to devise urgently a comprehensive regional plan utilising the best Caribbean brains that can be assembled from inside and outside the region.

Jessop agrees with Sir Ron's comments and said there is desperate need for a commission with popular support to be empowered to make recommendations on how to move forwards and modernise CARICOM.

The delay by most of the regional governments to abolish appeals to the Privy Council and accept the Caribbean Court of Justice (CCJ) is another glaring example of the lapse by the various administrations. So far only three jurisdictions, Guyana, Barbados and Belize have accepted the CCJ as the final appellate court.

January 15, 2011

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A look at CARICOM from outside the box

By A. Ludwig Ouenniche


It was with mixed feelings and a pinch of sadness that I learned about the stepping down of His Excellency Edwin Carrington from the helm of the Caribbean Community (CARICOM) as of December 31, 2010. The only consolation I got was that he will finally have the opportunity to spend some quality time with his family and loved ones.

For the Caribbean Community, it is rather sad news, and soon the region will realize the dangerous impact of the vacuum that a transition could create. I do hope that His Excellency will have the strength to continue advising and guiding with a much better listening ear.

As observers, from outside the box, such as in our case, the Dutch OCTs, quite often we are flabbergasted by the lack of regional coherence in implementing the multiple CARICOM initiatives during the last two decades.

I would like to share with you some of these initiatives:

The CSME:
As the fundamental base in the objective of CARICOM, we have been noticing an incredible preparation work being done for the CSME. Multiple meetings, workshops, reports, protocols and agreements, most of which were approved and signed, unfortunately, we did also notice that often they were hardly officialised and implemented by the member states.

This has resulted in an obvious lack of regional interaction, collaboration and economic partnership. This form of stagnation has led to a substantial slow down in the region preparedness to compete in this era of world economic globalization.

Regardless of the obvious similarities of the region and notwithstanding the outside influence and pressure diplomatically or financially advising the region to do so, no real effort was ever been individually done by the member states to officially recognize the urgent need for a true regional economic and social integration, this is noticeable not only between the 15 CARICOM member states, but also with the rest of the region, Dutch, British, French and independent.

As an example, the two historic initiatives of His Excellency to officially visit Curacao and Sint Maarten, has not been followed by any other visit by any official from the 15 member states.

The Regional Public Private Partnership:
Recognizing the private sector as a fully-fledged partner, CARICOM has been a fervent promoter of dialogue, interaction and collaboration, not only with individual consultants but with almost all organizations representing the private sector.

From those dialogues during the last decades, several initiatives, directly or indirectly linked to the private sector, were established, such as the CARIFORUM, the CARICOM Regional Organisation for Standards and Quality (CROSQ), the Caribbean Business Council (CBC), the Caribbean Court of Justice, PANCAP, the Caribbean Development Fund and many initiatives in Agriculture including CAPA.

So many well designed tools that, unfortunately, are still not optimally functioning as they are intended to be? Such important mechanisms, that I hope Sint Maarten can make use of some of them in the near future.

The Regional SME Development:
Through the years of struggle of the SME sector, it is obvious that it is still not being considered vital for the economy. To date the regional SME development has never been a priority, individually and regionally.

As far as history can show, the SME topic was never even debated in any of the multiple heads of states meetings. The latest effort made by CARICOM to establish a private sector/SME desk within the Secretariat has yet to receive the proper recognition and support by all the member states and ensure a real functioning Caribbean Association of SMEs, regardless of its geographic location.

The International Exposure, Recognition and Partnership:
The region has never had a real and effective exposure to the rest of the world like we have been experiencing the last few years. Indeed, under the creative initiative of His Excellency, the region has lately acquired serious attention from many “donor countries”, the most noticeable are from Europe, Canada, Central and Latin America and China.

In fact, to my recollection, it is the first time that the Caribbean was well represented in the historic Shanghai Expo.

Unfortunately, the real collective effort to maximize on these initiatives is lacking and in certain cases some have opted for a personal approach in the sole benefit of their individual economies, without any regional vision and/or collaboration.

These are my thoughts about some of these issues. I hope and pray that whatever changes to be made starting January 2011 will be made in respect of the work done so far and that the decision makers will have the wisdom to continue in the same path without any political and personal interference.

CARICOM is and should always be about continuity and the democratic system as having a rotating chairmanship every six months should favour this principal. What should be considered, though, is the instauration of a mechanism of organizational discipline, as in the case of the European Union where, when decisions that are collectively taken, must be individually implemented by all member states or face consequences.

This will certainly establish a much better competitive edge to the wider Caribbean and will definitely minimize the present syndrome of what I call the “Bermuda Triangle”: Trinidad, Barbados and Jamaica.

November 11, 2010

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The Caribbean Court of Justice (CCJ) needs two justices, including a president

CCJ needs two justices, including a president
by Oscar Ramjeet


The Caribbean Court of Justice (CCJ) has been in operation for five-and-a-half years as a final appellate court, with only three countries on board, and already it is on the hunt for a new president and another judge, and one has already retired.

Guyanese Duke Pollard reached the age of 75 and went into retirement after being given a three-year extension.

President Michael De La Bastide, who celebrated his 73rd birthday on July 18 this year, will go into retirement mid-next year and the CCJ has already placed advertisements in the region’s media inviting applicants who have served as a judge for five years or more in a court of unlimited jurisdiction in civil and criminal matters in the region, the Commonwealth or in a civil law jurisdiction.

Applicants are also being encouraged from persons who have been engaged as a practitioner or teacher of law for not less than 15 years in a member state of the Caribbean Community (CARICOM) or in some part of the Commonwealth or in a civil law jurisdiction.

The CCJ notes that the tenure of the president is for a "non renewable term of seven years or until age 72, whichever is earlier.”

The lone female judge in the regional court, Desiree Bernard, will be 72, and if she does not get an extension, the CCJ will have to get a replacement and the question is if the Regional Judicial and Legal Services Commission will look for another female to fill the slot held by Justice Bernard who had several firsts -- the first solicitor to be appointed a judge, the first female to be appointed a judge in Guyana, first female to be an appellate court judge, also chief justice, and the first woman to be head of the judiciary in the Caribbean when she was named Chancellor of the Judiciary in Guyana more than a decade ago.

The regional court has the most modern technology in several areas -- for video conferencing, research, and even presentation in court -- and it is very unfortunate that after such a relatively long time only three countries have joined the court. It seems to me that the other countries have breached their agreement with the Caribbean Development Bank since they agreed to go on board within a reasonable time.

Although most of the countries have not abolished appeals to the Privy Council, so that the CCJ can be their final appellate court, the CCJ can still determine their issues in its original jurisdiction.

I am surprised and disappointed with Jamaica and Trinidad and Tobago because these two countries were in the forefront in the late 1980s and early 1990s towards the setting up of the court. I recall the attorneys general of these two countries, Oswald Harding of Jamaica, and Selwyn Richardson (now deceased) of Trinidad and Tobago, were moving around the region lobbying governments to join the CCJ, and it is unfortunate those two countries have not yet done so.

Trinidad and Tobago’s new prime minister, Kamla Persad Bissessar, said that she will seek a referendum from the electorate before doing so. This is a bit baffling because it was the UNC administration under Basdeo Panday which was pushing for the court -- hence the reason why the court is located in Port of Spain.

Former Commonwealth Secretary General, Sir Shridath Ramphal, who has been advocating Caribbean integration for five decades, said in an interview with me that, if the CCJ collapses, the CARICOM Single Market and Economy (CSME) will fail.

Ramphal joined with four other eminent CARICOM nationals, former Jamaica prime minister, PJ Patterson; former CARICOM secretary general, Alister McIntyre; Dominica's president, Nicholas Liverpool; and University of the West Indies Vice Chancellor Sir George Alleyne, all recipients of the Order of the Caribbean Community (OCC), the highest award in the region, in calling on the other regional governments to rid themselves of the Privy Council and join the appellate jurisdiction of the CCJ.

The latest call for the other regional governments to join the CCJ came this week from another distinguished Caribbean jurist, Patrick Robertson, president of the International Criminal Tribunal for the former Yugoslavia, who said that the regional governments should have abolished appeals to the Privy Council since the day they became independent states.

So far, only Guyana, Barbados, and Belize have abolished appeals to the Privy Council. Let’s hope that the others will soon come on board.

October 19, 2010

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Sir Shridath Ramphal worries about CARICOM unity

by Oscar Ramjeet:



One of the Caribbean's most vocal regionalists is worried about the future of CARICOM and the integration movement and said that if the Caribbean Court of Justice (CCJ) collapses, CSME and the entire regional institution will fail.

I had a lengthy meeting with Sir Shridath Ramphal at his Barbados home, and he expressed grave concern about the pace of activities in the move towards Caribbean integration, for which he has been clamouring for five decades.

He said the Heads of Government and CARICOM have to "recapture the vision that led a generation of Caribbean leaders to the understanding that we have to have functional unity -- if we are to meet the challenges of the 21st century... We have seen to have lost our way in governance at the regional level in economic integration which is the heartbeat of CARICOM... We have lost our inspiration within the developing world when we were once the leaders of the ACP (African, Caribbean and Pacific nations) and perhaps worst of all Caribbean people are losing faith in the political leadership of the region."

The old problem of implementation is still with us and, without implementation, decisions are meaningless, Sir Shridath stressed and cited the CSME, which he said has still not gotten off the ground after so many years.

Touching on the Caribbean Court of Justice (CCJ), the former three-term Commonwealth Secretary General said the CCJ is the central pillar of regional integration under the Treaty of Chagaraumas. He pointed out that the CCJ is essential to the functioning of the CSME because the CSME is a legal regime. He added that we have come to the limit and asked what can be done without law at a regional level.

He has joined with four other recipients of the region's highest award, the Order of Caribbean Community (OCC), in calling on the various governments to remove the Privy Council and accept the CCJ as the final court.

I recall in 1977 when Sir Shridath spoke at the graduation exercise of the University of the West Indies at St Augustine, when he received his honorary doctorate from the UWI, he made an impassioned plea for regional integration and pointed out that the English-speaking Caribbean, which has a population of less than five million, has the most prime ministers, presidents, ambassadors and high commissioners on the planet -- although the population is so small.

The Guyanese-born diplomat is a regionalist at heart and was a keen player in bringing an end to Ian Smith's Unilateral Declaration of Independence and institutional racism in Southern Rhodesia. He also spent much of his last five years as Commonwealth Secretary General, until 1990, in the struggle to end apartheid in South Africa. He had the satisfaction of playing a part in Nelson Mandela's release from prison in February 1990, and Namibia's independence the following month.

Sir Shridath with Oscar Ramjeet at his home in Barbados

September 8, 2010

Caricom SME — soon come

By ANTHONY GOMES




PRECIOUS little has been reported in the media about the outcome of the 31st meeting of Caricom Heads of Government in Montego Bay. Apart from the sparse attendance by Heads of Government that can only be described as disappointing, the meeting was successful in bringing to the fore the three cardinal issues that for years have haunted the agenda of the conference. These are the issues of governance, that is, leadership, difficulties with intra-Caricom trade, the selection of a new Caricom Secretary General and reform of the Secretariat.

However, we are encouraged by Prime Minister Persad-Bissessar's expression of goodwill by promising to address several trade disputes existing between Jamaica and Trinidad and Tobago. The PM made reference to concerns about a "few perceived issues" related to the cost of production and inputs in both Trinidad and Jamaica, which would include the preferential cost of energy in Trinidad. She said, "We will assess and reassess and review, and where we can find amicable solutions that will endure and enure for the benefit of our people here in Jamaica and in Trinidad and Tobago."

The PM continued, "Now is not the time for the regional business community to be combative rather desperately, we need to join forces to impact in a sustainable way on the international scenario, so let us not in some ways concentrate on our differences and engage in warfare in the region." These remarks are well intentioned, indicating where the inquiry process should begin and the amicable attitude that should prevail.

The foregoing comments were well received and it is now clear that the PM is aware of our continued "bleating and bitching" about these "perceived issues" over the years. It is certainly not the intention to be "combative" as the issues at hand are legitimate trade problems encountered as part of our developing Caribbean trade regime, to be settled within the purview of the Revised Treaty of Chaguaramas without recourse to the World Trade Organisation, if possible.

The PM also gave advice on how the two states can enjoy successful commercial relationships. Three changes for improvement were recommended. First, engage in innovative improvements to their businesses. Second, create alliances between the business communities of both countries. Third, engage in meetings to discuss ways in which businesses could establish partnerships. These business liaisons are already in progress evidenced by the continuing investment by Trinidadian interests in new projects being developed in Jamaica. However, as the adage goes, "The largest room in the world is the room for improvement", and so we support and concur with the offered advice.

Regarding the paramount issue of governance, PM Golding as Chair of Caricom for the next six months said, "We acknowledge that there is an issue with governance, and we have not solved that problem. We are aware of the proposal to put in place a permanent executive commission or a group of commissioners who have executive powers and then, in effecting the decisions of heads, would translate it to a domestic legislation with a certain amount of automaticity. There is need for continuity and follow-up. There is need for coordination to ensure that those decisions can be implemented." We await the report of the sub-committee in January 2011 covering this key proposal for a Caribbean Commission. The issue of the inequitable terms of trade between the states has been dealt with above.

The selection of a successor to the Caricom Secretary General and reform of the Secretariat should be the subject of a Technical Working Group study. The world's largest current service industry is "bureaucracy" creating a multilayered structure comprising organs, bodies, treaty entities, installations and associate institutions in Caricom which excels in job creation but slows to a moribund pace of implementation of constructive decisions. To be relevant to Caricom today, it has to be reorganised from bottom up and turned into a lean, mean, multifaceted machine, equipped to manage the electronic speed of business today, without the "paper chase" that accompanies the conduct of the Secretariat's business dealings.

A point of high importance which passed unnoticed without comment, was reported by Rickey Singh in this newspaper on July 7, that referred to Trinidad's PM openly speaking about her government's reservations: "...as well as against a commitment to any form of political integration with the sub-region of the OECS as had been signalled by her predecessor, Patrick Manning." Such an outstanding rejection will surely reverberate throughout the Eastern Caribbean, but will reinforce Caricom's unity.

Mission: "The Caribbean Court of Justice shall perform to the highest standards as the supreme judicial organ in the Caribbean Community. In its Original Jurisdiction it insures uniform interpretation and applications of the Revised Treaty of Chaguaramas, thereby underpinning and advancing the Caricom Single Market and Economy. As the final court of appeal for member states of the Caribbean Community, it fosters the development of an indigenous Caribbean Jurisprudence."

There should be no rush to enjoin the CCJ in its original jurisdiction on the sensitive issue of disadvantaged trade in Caricom. The issue could be resolved by dialogue, investigation and conciliation, given the goodwill and understanding expressed by Kamla Persad-Bissessar during her visit to Jamaica. As with all things temporal, should the critical path as suggested not succeed, then referral to the CCJ should be considered. It is sincerely hoped that such recourse would not come to pass.

July 14, 2010

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Will Jamaica soon abolish appeals to the Privy Council?

by Oscar Ramjeet:


It seems as if the Bruce Golding administration in Jamaica has had a change of heart and is now contemplating abolishing appeals to the Privy Council so that the country could join the Appellate Division of the Caribbean Court of Justice (CCJ).

The reason for my opinion is that the country's Governor General Sir Patrick Allen earlier this week administered the oath of office to Jamaican born Professor Winston Anderson as a judge of the CCJ in Kingston and that Prime Minister Bruce Golding spoke in appreciative, though measured, terms of the court’s performance in its five years.

The move to administer the oath to a CCJ judge outside Port of Spain is unprecedented, but it has been reported that the request came from Professor Anderson in order to facilitate his mother and other relatives to witness the ceremony.

An editorial in the Jamaican Gleaner states, "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. This is the difficult bit."

The governing JLP two decades ago was in the forefront, along with Trinidad and Tobago, of the establishment of the CCJ.

I recall while I was solicitor general of St Vincent and the Grenadines in the late 1980s, the attorney general of Edward Seaga 's JLP administration, Oswald Harding, was travelling around the region, along with the late Selwyn Richardson, who was the attorney general of the twin island republic, trying to lobby CARICOM leaders to join the court, but the party changed its stand and vehemently opposed the regional court in its role as the court of last resort in criminal and civil matters.

Their concern was mainly the question of the independence of the CCJ, which the JLP continued to advance even after it was clear that the court was insulated against political interference.

The JLP went further when it successfully challenged the constitution at the Privy Council against Jamaica's participation in the CCJ as was then contemplated.

If the JLP is now in favour for Jamaica to join the CCJ as the final appellate court instead of the Privy Council, there should be no problem because the opposition People's National Party is a strong supporter of the CCJ.

The Jamaican government is contributing 27% of the costs to run and administer the CCJ and has not been getting any benefit whatsoever, since it has not yet abolished appeals to the Privy Council.

Belize is the third country to join Guyana and Barbados, and now that Trinidad and Tobago has a new government, legal circles in the twin island republic feel that the new Prime Minister, Kamla Persad Bissessar, a West Indian-trained attorney might be in favour of the CCJ.

She has already indicated that she will fully embrace CARICOM and its members. She is known to be close to CARICOM colleagues and, as a matter of fact, she invited five of them from Barbados and St Kitts to attend Friday's opening of Parliament in Port of Spain.

She recently commented on the poor state of West Indies cricket, and said that every effort should be made to solve the problems between the West Indies Cricket Board (WICB) and the West Indies Players Association (WIPA), since she said that cricket is one of the pillars of Caribbean unity.

St Lucia, Dominica and Grenada are also considering going on board. The Ralph Gonsalves administration in St Vincent and the Grenadines wanted to join also, but it failed in its referendum to amend the constitution on November 25 last.

However, in my view, it is not that Vincentians do not want to remove the Privy Council as the final court, but the referendum was loaded with a series of constitutional amendments, including more powers to the prime minister, and a president to replace the governor general.

It is unfortunate that CARICOM countries take so long or are somewhat reluctant to be a part of the regional system since the CCJ was inaugurated on April 12, 2005.

I was privileged to visit the court while in Port of Spain for the Fifth Summit of the Americans and was impressed with what I have seen -- besides the well equipped libraries, spacious conference room, robing room, etc, I was elated with the courtroom’s appearance, with the most modern telephonic and other fascinating equipment, which is said to be some of the best in the world.

The facilities include a document reader/visual presenter; ability to use laptop computers, DVF/VCR; audio/video digital recording (microphones situated throughout the courtroom); wireless internet access, and audio/video transcripts.

June 19, 2010

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Belize abolishes appeals to Privy Council as of June 1

By Oscar Ramjeet:


It is now official.

Belize will abolish appeals to the Privy Council as of next month, June 1.

An Order to this effect was issued by the country's Prime Minister, Dean Barrow, which was advertised in the last issue of Belize Government Gazette and which stated that the Constitution (Seventh Amendment) Act and the Caribbean Court of Justice Act will come into effect on that date.

The Caribbean Court of Justice (CCJ) will now replace the Privy Council as the highest Court of Appeal for Belize. This will not, however, affect appeals pending before the Privy Council on 31 May 2010.

Belize is the third country to have accepted the Appellate Jurisdiction of the CCJ, which was established on 14 February 2001. The other two are Guyana and Barbados.
The present seat of the CCJ is in Port of Spain, Trinidad and Tobago. However, the Agreement establishing the CCJ provides that the Court may sit in the territory of any other Contracting state as circumstances may require.

Moreover, the CCJ has the most modern technical facilities, including audio and video facilities and applications and interlocutory proceedings can be conducted via these media rather than by attorneys journeying to Port of Spain to make their presentations.

A Belize Government press release issued on Tuesday stated, "The removal of the age-old Privy Council as the highest court for Belize and its replacement by the CCJ represents a major landmark in the constitutional and legal history of Belize and has been widely welcomed among the Caribbean Community."

Guyana severed its link with the London based Privy Council since 1970 when the country attained republican status, and established its own court of appeal -- the Guyana Court of Appeal -- as its final court, and as a result litigants were only allowed one appeal in Guyana for a number of years until April 2005 when the CCJ was inaugurated.

Barbados retained the Privy Council until 2005 when it accepted the regional court as the final court.

Although the CCJ was established in 2001, discussions have been going on since 1988. I recall that Jamaica and Trinidad and Tobago were in the forefront of its establishment, and it is unfortunate that neither of the two countries has up to this date rid itself of the Privy Council. However, both countries tried, but were prevented by a ruling of the said Privy Council that the procedure they adopted was wrong and that they require constitutional amendments.

However, I am optimistic that these two countries, which are considered the big countries in the region will sooner rather than later amend their Constitutions, thus paving way to join the appellate division of the CCJ.

Port of Spain is the headquarters of the CCJ and I feel that the twin island republic will take steps before the end of this year to put the mechanism in place to join the regional court, even if there is a change of government.

As a matter of fact, if Kamla Persad-Bissessar becomes the new prime minister, she being a Caribbean-trained attorney, will be anxious to have the regional court as the final appellate court, and I have no doubt that Patrick Manning will give his support, since he has always been in favour of the move, but the former opposition leader, Basdeo Panday was and still is against it.

Perhaps I should state that, since two thirds of the votes are required in a referendum to change the Constitution, the government must get the support of the opposition before it becomes a reality.

St Lucia, Dominica, and Grenada are also considering joining the CCJ. The Ralph Gonsalves administration in St Vincent and the Grenadines wanted to get on board, but it failed in its referendum to amend the constitution on November 25 last.

However, in my view, it is not that Vincentians do not want to remove the Privy Council as the final court, but the referendum was loaded with a series of constitutional amendments, including more powers to the Prime Minister, and a President to replace the Governor General.

The Antigua and Barbuda government is now engaged in a battle for survival following a recent court decision that declared three seats held by Ministers, including the Prime Minister, vacant on the ground that there were irregularities on election day, and as such the Baldwin Spencer administration is not now in a position to look into the issue.

May 12, 2010

caribbeannetnews

Bahamas Blog International

Jamaican appointed Caribbean Court of Justice (CCJ) judge - will this prompt progress?

By Oscar Ramjeet:

The Regional Judicial and Legal Services Commission (RJLSC) appointed a Jamaican as the newest judge in the Caribbean Court of Justice (CCJ).

He is Professor Charles Anderson, an academic who replaces Duke Pollard, who goes into retirement on June 10 next when the new judge will assume duties.

He is the first Jamaican to be appointed to the regional court, and the omission of a judge from the largest country in the region has been criticised, especially since that country contributes 27 percent of the costs to run and administer the Court.

Former Attorney General of Jamaica, Dr Osward Harding, who is now the President of the Senate, had indicated to me two years ago that several highly qualified Jamaicans, including a few outstanding Senior Counsel, were overlooked five years ago.

Now that that a Jamaican has been appointed as a judge, one wonders if this will accelerate the powers that be in Kingston to join the Appellate Division of the Court.

Pollard's appointment in the regional court was criticized in some quarters since he was never in active law practice, never served as an advocate either as counsel or prosecutor and has never sat as a judge. He has been an academic throughout his legal career and was involved in preparatory work for the establishment of the CCJ.

The tenure of CCJ judges expires at 72 years of age, but Pollard was given a three year extension two and a half years ago.

Since Pollard's appointment was criticised, legal practitioners want to know why the RJLSC chose a law professor rather than an experienced judge.

Anderson holds a law degree from the University of the West Indies and a Doctorate in Philosophy (Phd) in international law from the University of Cambridge. For most of his career, he has been a member of the Law Faculty of UWI. He was appointed lecturer in 1994, senior lecturer in 1999 and was made professor in 2006. He spent a year as a research fellow at the University of Sheffield between 1994 and 1995, and a year as senior lecturer on fellowship at the University of Western Australia in 1996. He is currently the executive director of the Caribbean Law Institute Centre (CLIC).

Professor Anderson and Professor Simeon McIntosh were involved during the past two years travelling around the Caribbean participating in seminars promoting the CCJ, and urging governments to join the Appellate Division of the Regional Court

The lone female judge in the Court, Desiree Bernard, who was Chief Justice and former Chancellor of Guyana, will reach the age of retirement in March next year, and already there are discussions in the legal circles whether she will be given an extension and, if not, whether another female will be appointed to replace the distinguished Guyanese, who had many firsts in her homeland - the first female judge, first female Court of Appeal Judge, first female Chief Justice, first female Chancellor of Guyana and first female Head of the Judiciary in the Caribbean. She is also the first solicitor to be appointed a judge, the reason being that the legal profession in Guyana was fused in 1979 and Justice Bernard, a practicing solicitor, automatically became an attorney at law since both solicitors and barristers were known as attorneys as of November 1979.

Justice Bernard was appointed a High Court Judge in 1980. I recall writing a piece in the local newspapers under the headline "High time for a female judge in Guyana" and I suggested her appointment although she was from the practicing Bar, and the following week she was named.

Belize will soon be on board as the third jurisdiction to join the CCJ, and I look forward for Dominica and Jamaica to do so soon rather than later. I am also hopeful that Trinidad and Tobago will consider joining now that there is a new opposition leader in Kamla Persad Bissessar, a West Indian trained attorney who served as attorney general in the Basdeo Panday administration.

March 29, 2010

caribbeannetnews

Bahamas Blog International

Delay in joining Caribbean Court of Justice (CCJ) is amazing

By Oscar Ramjeet:


As Belize is about to join the Caribbean Court of Justice (CCJ) as its final court, one of the seven judges and the Court Registrar visited the country and held discussions with local judges and explained the Rules and Procedure of the regional court with practising lawyers.

Their visit coincided with a farewell sitting for Appellate Court Judge, Jamaican-born Boyd Carey.

Justice Adrian Saunders, who was involved in drafting the Rules of the CCJ and Registrar, Dawn Pierre, explained to more than three dozen lawyers at a workshop on Saturday, the rules and procedures to be followed in filing appeals to the regional court.

Belize is the third CARICOM country to get rid of the Privy Council as the final Court, and the first to do so since its establishment, when only two countries, Guyana and Barbados, went on board. It baffles me why the other member states are hesitant and/or reluctant to do so, especially countries like Trinidad and Tobago and Jamaica, which were in the forefront in the setting up of the Court. However, I have been reliably informed that Dominica is in the process of making preparations to join, but that country is now experiencing parliamentary setback since the opposition party is boycotting parliament, claiming irregularities at the last general elections.

Jamaica as well as St Lucia are also considering joining in the near future. The Patrick Manning administration in Trinidad and Tobago is all in favour of the regional court, but in order for that country to join it must get the support of the Opposition, since it requires two thirds of the vote, and the then opposition leader, Basdeo Panday, was not in favour of the move. However, now that there is a new leader of the opposition UNC, in Kamla Persad-Bissessar, who is a West Indian- trained attorney, it is likely there will be a change in that regard.

The CCJ has been established since February 14, 2001, by an agreement signed by a dozen regional governments on February 15, 2003, but the inauguration took place nearly five years ago on April 15, 2005.

The Court has not heard many cases in its Appellate jurisdiction since only two of the 12 countries have accepted the CCJ as the final appellate court, and this is very unfortunate since the Port of Spain based Court has the best court facilities on the planet. I was privileged to visiting the Court and was impressed with what I have seen - besides the well equipped libraries, spacious conference room, robing room etc. I was elated with the court room appearance, with the most modern telephonic and fascinating equipment. The facilities include: A document Reader/Visual Presenter: Ability to use laptop computers, DVF/VCR: Audio/Video Digital Recording (microphones situated throughout the courtroom) ; wireless internet access, and audio/video transcripts.

International jurists who have visited the CCJ and read its judgments generally have a high opinion of the court. One of them, Francis Jacobs, a Privy Councillor and former Advocate General of the European Court of Justice, said that the CCJ is of a high calibre and would be able to take account of local values and develop a modern Caribbean jurisprudence in an international context. He also took a swipe at some Caribbean leaders when he said, "It is regrettable that political difficulties have obstructed acceptance of its Appellate jurisdiction and that the outdated jurisdiction of the Judicial Committee of the Privy Council survives for many of those states.

One of the most respected Caribbean jurists, Dominican born Telford Georges, said before his death that he regarded it as a "compromise of sovereignty" for us to remain wedded "to a court which is part of the former colonial hierarchy, a court in the appointment of whose members we have absolutely no say."

I sincerely hope that steps will soon be taken by those countries that have not yet joined will do so as soon as possible.

March 22, 2010

caribbeannetnews

Bahamas Blog International

More countries showing interest in joining the Caribbean Court of Justice (CCJ)

By Oscar Ramjeet:


It is more than four and a half years since the Caribbean Court of Justice (CCJ) was inaugurated and, so far, no other jurisdiction has joined Guyana and Barbados in accepting the CCJ as the final appellate court.

I read with great interest a statement made by St Lucia Oppositon leader, Kenny Anthony, calling for a region wide simultantous move to join the regional court.

He added that he does not believe that any government should go into amending their particular constitution to facilitate accesssion without securing the agreement of the opposition.

I wonder why when politicians are in the opposition they call on government to take action and when they are in power, they do not comply. Anthony was prime minister when the Court was inaugurated in April 2005. In fact he was present at the lavish ceremony in Port of Spain, and he was in government for 20 long months and he failed to set in motion for his country to remove the Privy Council as the final Court and replace it with the CCJ.

Now he is out of government, he wants co-operation between the government and opposition to join the regional court. This a good move on his part, but he should have done so when he was in government.

There are several factors why some countries are/were reluctant to join the regional court. Jamaica for instance, which was in the forefront in the establishment of the Court, lost interest. Former Attorney General Dr Oswald Harding, who is the current President of the Court of Appeal. who was the main advocate for the court in the late 1980s and early 1990s, said that, although Jamaica is contributing 27% towards the operation of the court, no Jamaican has been appointed as judge, although seven senior well qualified lawyers had applied for the position, and they were all by passed for persons who were less qualified.

He added also the former Prime Minister P.J. Patterson tried to railroad Jamaica's entry and failed to carry out the correct legal procedure to remove the Privy Council as the final Court, which was later struck down by the London-based final court.

The rejection by the electorate in St Vincent and the Grenadines of the November 25 referendum should not be used as a yardstick in the region to measure the thinking of the people whether or not to accept the CCJ as the final Court. I think there were other factors why that referendum failed.

Antigua and Barbuda Attorney General, Justin Simon, made the point that the results of the St Vincent rederendum should not deter other jurisdictions from seeking constitutional changes to accommodate the regional Court.

Belize will soon join the regional court. Jamaica has reconsidered its position and will soon put the mechanism in place to do so and a few OECS states including Grenada, Antigua, and St Lucia are also willing.

Trinidad and Tobago, which spearded the establishment of the Court along with Jamaica, will take some time before it comes on board. The reason being that it must first secure the approval of the Opposition, and Basdeo Panday's UNC is not interested... at least not for now.

Lets hope by the end of next year at least three other jurisdictions will be on board.

December 9, 2009

caribbeannetnews

Bahamas Caribbean Blog International

Mixed reviews for the Caribbean Court of Justice (CCJ)

Mark Beckford, Staff Reporter

Susan Goffe, chairperson, Jamaicans for Justice.

Despite assurances from the Caribbean Court of Justice (CCJ) about measures put in place for the independence of the court, Susan Goffe of Jamaicans for Justice is expressing some concern about how it is administered.

Goffe noted that while there was a Regional Judicial and Legal Services Commission to oversee the selection of judges, the arrangements do not go far enough to ensure the legitimacy and security of the court.

Goffe added that more changes are needed to secure the independence and permanence of the court than the amendments already made to the Treaty of Chaguaramas. This treaty is the agreement between the Caribbean states, setting up the CCJ, among other things.

Goffe believes that any legitimisation of the court should be done by enshrining whatever changes there should be in the Jamaican Constitution. With that said, she believes serious national discourse should begin.

Judiciary independence vital

Answers to concerns about the independence of the court from manipulation are posted on the CCJ website.

"It is generally accepted in our societies that independence of the judiciary is a vital and essential ingredient of the rule of law, a basic principle of social engineering in CARICOM member states.

"To ensure independence of the members of the court, appropriate provisions have been elaborated in the agreement establishing the CCJ to provide for credible institutional arrangements," the website read.

It continued: "First, unlike the situation with the European Court of Justice, where Judges are appointed by the ministers of government, judges of the CCJ are appointed by a Regional Judicial and Legal Services Commission, whose composition should offer a reasonable degree of comfort to the court's detractors."

The funding of the court by member states of CARICOM has also raised the spectre of influence by these same states. However, the CCJ on its website said that certain steps have been put in place to ensure that this does not occur.

"In order to pre-empt this eventuality, the heads of government have mandated the ministers of finance to provide funding for the recurrent expenses of the court for the first five years of its operation."

A trust fund has been established and capitalised in the sum of US$100 million, so as to enable the recurrent expenditure of the court to be financed by income from the fund which is administered by the Caribbean Development Bank.

Former Solicitor General Michael Hylton said this provision has earned his confidence in the court.

Beyond the rules

"Political influence doesn't mean that a politician is going to call you and tell you what to do, but if a country doesn't like a judgment, it can withdraw its payment. This cannot occur under the treaty and with the trust fund that is set up," he said.

Attorney-at-law R.N.A Henriques, however, believes that independence goes beyond just putting in rules.

"We have had a history in Jamaica, where the bias of rulings are in favour of the government in cases. Therefore one is not really insulated by a Constitution. The dispensation of the rulings will be based on integrity not by what is in the constitution. Time will tell, that is why it is important that the judges are of a certain calibre."

December 7, 2009

caribdaily

Bahamas Caribbean Blog International

No referendum needed for St Kitts-Nevis to join the Trinidad-based Caribbean Court of Justice (CCJ), says Prime Minister Denzil Douglas

BASSETERRE, St Kitts (CUOPM) -- St Kitts and Nevis Prime Minister Denzil Douglas said on Tuesday the twin-island Federation does not have to hold a referendum to join the Trinidad-based Caribbean Court of Justice (CCJ).

Responding to a question during his weekly radio call in programme “Ask the Prime Minister,” Douglas said St Kitts and Nevis would proceed to the Caribbean Court of Justice (CCJ), as part of the collective body that presently utilizes the Eastern Caribbean Supreme Court (ECSC) system.

“I have been advised of this sometime ago. We do not necessarily have to hold a referendum if we want to advance to the CCJ as our final appellate court rather than utilizing the (London-based) British Appellate Court,” said Douglas, who said he was willing to check with legal advisers to see if the position remains the same.

“We support the CCJ. We are not against it for we support it, but we will advance with the other OECS countries as the entirety of the OECS Supreme court system,” said Douglas.

Of all the CARICOM member countries only Barbados and Guyana have the CCJ as their final appellate court.

The Caribbean Court of Justice (CCJ) is the regional judicial tribunal established by the “Agreement establishing the Caribbean Court of Justice.” It had a long gestation period commencing in 1970 when the Jamaican delegation at the Sixth Heads of Government Conference, which convened in Jamaica, proposed the establishment of a Caribbean Court of Appeal in substitution for the Judicial Committee of the Privy Council.

The Caribbean Court of Justice has been designed to be more than a court of last resort for Member States of the Caribbean Community. For, in addition to replacing the Judicial Committee of the Privy Council, the CCJ will be vested with an original jurisdiction in respect of the interpretation and application of the Treaty Establishing the Caribbean Community. In effect, the CCJ would exercise both an appellate and an original jurisdiction.

In the exercise of its appellate jurisdiction, the CCJ will consider and determine appeals in both civil and criminal matters from common law courts within the jurisdictions of Member states of the Community and which are parties to the Agreement Establishing the CCJ. In the discharge of its appellate jurisdiction, the CCJ will be the highest municipal court in the Region.

In the exercise of its original jurisdiction, the CCJ will be discharging the functions of an international tribunal applying rules of international law in respect of the interpretation and application of the Treaty.

By interpreting and applying the Revised Treaty of Chaguaramas which establishes the CSME, the CCJ will determine in a critical way how the CSME functions.

Member States signing on to the agreement establishing the CCJ agree to enforce its decisions in their respective jurisdictions like decisions of their own superior courts.

October 15, 2009

caribbeannetnews

Bahamas Blog Bahamas

Jamaica Prime Minister, Bruce Golding says the Jamaican government may re-evaluate its position on the Caribbean Court of Justice (CCJ)

KINGSTON, Jamaica (JIS) -- Prime Minister, Bruce Golding, indicated on Tuesday night that the Jamaican government may be contemplating re-evaluating its position on the Caribbean Court of Justice (CCJ).

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

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

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

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

October 8, 2009

caribbeannetnews

Bahamas Caribbean Blog International