From the Office of the Ambassador of Caricom – The CCJ REVISITED

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DAVID COMISSIONG, Barbados’ Ambassador to CARICOM

I suspect that the primary reason why the people of Grenada and Antigua & Barbuda voted on 6th November 2018 not to accept the Caribbean Court of Justice (CCJ) as their highest national Court of Appeal is because – fundamentally – most of our people do not really know much about the Caribbean Court of Justice!

And the truth is that we Caribbean people do not really know very much about the CCJ simply because the institutions and officials that should have been consistently informing and educating us about the CCJ and our other significant regional institutions over the years have not done enough.

It is important that we fully grasp the fact that the CCJ is our organization! The Caribbean Court of Justice was established by the fifteen member nations of our Caribbean Community (CARICOM) – inclusive of the said Grenada and Antigua & Barbuda – and is therefore an “institution” of CARICOM.

Indeed, the CCJ is one of the twenty odd institutions of CARICOM – a group of institutions that includes the Caribbean Disaster Emergency Management Agency (CDEMA), the Caribbean Agricultural Research and Development Institute (CARDI), and the Caribbean Examinations Council (CXC) among others.

Many of these CARICOM institutions are outstanding organizations, but if I was challenged to select THE very best and most excellent CARICOM institution of them all, I would have to go with the Caribbean Court of Justice (CCJ)!

And let me now list the many reasons why – in my opinion – the CCJ stands head and shoulders above not only every other CARICOM institution, but also way above the British Privy Council:-

  1. First of all, the finances of the CCJ are as secure as the proverbial “Fort Knox”!  You see, the CCJ is financed out of the income generated by a permanent US$100 Million Trust Fund that is administered by a highly professional Board of Trustees drawn from or including the Heads of the Insurance Associations of the Caribbean, the Caribbean Institute of Chartered Accountants, the Association of Indigenous Banks of the Caribbean, the Organisation of Commonwealth Caribbean Bar Associations, the Caribbean Congress of Labour, the Caribbean Association of Industry and Commerce, the University of the West Indies and the CARICOM Secretariat.  This excellent state of affairs is a tribute to the collective foresight of the CARICOM Secretariat, then Barbados Attorney-General, Mia Amor Mottley, and former St. Lucia Prime Minister, Dr. Kenny Anthony, who undertook responsibility for setting up the Trust Fund at the time of the establishment of the CCJ.
  2. This fulsome and secure funding explains why the CCJ has been able to establish and maintain a first class, modern, state-of-the-art headquarters and Court in Port-of-Spain, Trinidad & Tobago and – unlike the Privy Council – to also institute the modus operandi of an itinerant Court, travelling and taking its services to Caribbean citizens in Barbados, Jamaica, Belize, Guyana and other CARICOM nations.
  3. The CCJ also employs and maintains a panel of absolutely first class, experienced, and highly professional judges who – to date – have been drawn from the nations of Trinidad & Tobago, St. Kitts & Nevis, Jamaica, St. Vincent & the Grenadines, the United Kingdom, Barbados, the Netherland Antilles, Guyana and Belize.  Indeed the Presidents of the Court have been such outstanding legal luminaries as Hon. Michael de la Bastide of Trinidad & Tobago, Sir Dennis Byron of St. Kitts & Nevis, and Hon. Adrian Saunders of St. Vincent & the Grenadines.
  4. The CCJ judges are all appointed by a broad-based non-political “Regional Judicial and Legal Services Commission” (RJLSC), comprised of selectees or representatives of the Council of Legal Education, the University of the West Indies and University of Guyana Law Faculties, the private sector Bar Associations of the CARICOM nations, the OECS Bar Association,  the Organization of Commonwealth Caribbean Bar Associations, one CARICOM Public Service Commission and one Judicial Services Commission, and the Secretaries General of CARICOM and the OECS.  You really cannot get more broad-based and politically independent that this!
  5. The CCJ – unlike the Privy Council – is a final Court of Appeal for all types of civil and criminal cases – from the smallest civil claim of the average working-class Caribbean citizen to the high finance cases of the corporate elite.  The British Privy Council, on the other hand, basically functions as an Appeal Court either for the murder appeals of persons on death row or for big civil cases.  The Privy Council is not – in effect – a court that deals with the typical legal matters of ordinary Caribbean citizens!
  6. And one of the reasons why the British Privy Council – unlike the CCJ – is not really a Court for the masses of Caribbean people, has to do with costs.  In order for a Caribbean citizen to take a case before the Privy Council in London, England, he or she not only has to get permission to do so, but he/she also has to pay expensive filing costs; retain expensive UK based lawyers; and undertake the expensive venture of travelling to the United Kingdom.  Indeed, legal experts estimate that a Caribbean citizen has to look for somewhere between US$57,000 and US$87,000 in order to pay for a civil appeal before the Privy Council!  With the CCJ there is no such prohibitive cost.  Furthermore, rather than the Caribbean citizen having to travel to the CCJ in Trinidad, the CCJ will often come to the citizen in his or her home territory, or permit the appeal to be heard via video conferencing!
  7. Finally, unlike the Privy Council, the CCJ makes it a point of duty to “get on the case” of inefficient or dysfunctional national Courts of Law in our individual CARICOM member states – constantly subjecting them to constructive criticism, advice, and even training, in order to get them to improve their standards.

Clearly, the CCJ is one of the greatest accomplishments of our regional integration Movement!  Moreover, it is an achievement that we collectively accomplished through the application of our own initiative and native intellect, and that our citizens and taxpayers have independently underwritten and financially supported.  It therefore goes without saying that we should all feel very proud about this outstanding Caribbean success story.

At present, the CCJ serves 14 CARICOM member states as a Court of original jurisdiction with responsibility for interpreting and applying the Revised Treaty of Chaguaramas, but it only serves four (4) CARICOM states as a final national Court of Appeal – Barbados, Guyana, Belize and Dominica.

Surely it is time for all of us in the Caribbean Community (CARICOM) to make full use of this first class Caribbean institution!

The Jeff Cumberbatch Column – Exercises in Sovereignty, Self-doubt or Apathy?

It is offensive to the sovereignty of independent nations and therefore, politically unacceptable, to have a foreign tribunal permanently entrenched in their Constitutions as their final court.” Sir Isaac Hyatali

“…we recommend that appeals from our jurisdiction to the Privy Council should not only be retained but their retention should be most jealously guarded from assault from any quarter, whether or not Trinidad and Tobago calls itself a monarchy or a republic…”Minority Report of the Constitution Commission of Trinidad & Tobago (1974)

Arguments such as that advanced by Sir Isaac Hyatali in the epigraph above to the effect that retaining the Judicial Committee of Her Majesty’s Privy Council [JCPC] as the apical court in an independent regional jurisdiction is offensive to the notion of sovereignty have been forcefully met with the counter that it is equally an exercise in sovereignty to choose to so retain it, since that choice would at least have been effected after due consideration by the sovereign, even though the ultimate disposal of the issue does not accord with views such as Hyatali’s.

Such a thesis would, no doubt appeal to those in the region, such as last Tuesday’s electorates in Grenada and Antigua & Barbuda that were not of the view in sufficient numbers or, seemingly at all constitutionally, to accede to the Caribbean Court of Justice [CCJ] as the final appellate court for their respective jurisdictions.

Those results, though disappointing to this writer, were scarcely unsurprising. In relatively recent times, electorates have arrived at some outcomes that appear to defy the punditry and, in some cases, with all due respect to the so-called “voice of God” theory; common sense. I include among these, the successful Trump presidential candidature in the US, the Brexit yes vote in England and the recent decision of New Caledonia to remain substantially under French rule. We might also wish include here the 1995 decision by the wide margin of three to one of Bermuda to reject independence from Britain, the negative result of the Bahamian 2016 referendum to eliminate discrimination against women and those in the multi-question Grenadian referendum of that same year. I, somehow, had the sneaking suspicion that the two regional referenda on Tuesday would have fitted comfortably into this company. And so they did.

There will be the usual informed and uninformed analyses of what might have gone wrong, but in the immediate aftermath of Tuesday’s twin rejection of the CCJ, there is a sense of weariness and despair that this current regional experiment is now doomed to hobble into the next quarter of this century on the single leg of the four jurisdictions that currently avail themselves of its appellate jurisdiction.

In his essay “Power to the Caribbean people” published in The Aftermath of Sovereignty: West Indian perspectives, edited by Lowenthal and Comitas, the late Nobel laureate, VS Naipaul, offered the following thesis-

These Caribbean territories are not like those in Africa or Asia, with their own internal reverences that have been returned to them[selves] after a period of colonial rule. They are manufactured societies, labour camps, creations of empire and for long they are dependent on empire for law, language, institutions culture, even officials. Nothing is generated locally, dependence has become a habit…

Whatever may be the cogency of this assertion, it must also be recognized that the tawdry element of partisan politics also had a significant role to play in the respective outcomes on Tuesday. There exists a keen tussle between the lawyer and the politician for being considered as the occupation for which the hottest part of Hades is reserved, but that it might have been considered politically prudent and astute to foil the regionalist ambition to accede to our own court in favour of one created for a British Empire on whom the sun has long set, smacks of crass unthinking opportunism.

At a higher level of discussion, I was driven to wonder in a recent conversation as to what might have influenced the negotiations for the final draft of the text of the Schedule to the Antigua and Barbuda Independence Order (popularly referred to as its Constitution) to so deeply entrench the provision for the JCPC as its final court of appeal. Thus, the Antigua and Barbuda Constitution 1981 stipulates, where relevant, at section 47 (5)-

A bill to alter this section, Schedule 1 to this Constitution or any of the provisions of this Constitution specified in Part I of that schedule … shall not be submitted to the Governor-General for his assent unless

(a) there has been an interval of not less than ninety days between the introduction of the bill in the House and the beginning of the proceedings in the House on the second reading of the bill in that House;

(b) after it has been passed by both Houses of Parliament or, in the case of a bill to which section 55 of this Constitution applies, after its rejection by the Senate for the second time; and

(c) the bill has been approved on a referendum, held in accordance with such provisions as may be made in that behalf by Parliament, by not less than two- thirds of all the votes validly cast on that referendum…

Included among the specified provisions in Part 1 of Schedule 1 is that which confers a right of appeal to Her Majesty in- Council, either as of right or with the leave of the Court of Appeal in certain cases. Was this provision resisted at any stage, seeing that the discussions were about the imminent conferral of sovereignty on the former Associated State? Was its implications clearly understood by the national delegation? Was it discussed at all?

Contrastingly, the Barbados 1966 document seems far more concessionary to the state in question concerning its determination of a final appellate court. According to section 86 of the original 1966 instrument-

Notwithstanding anything contained in Part 1 of this Chapter, Parliament may make provision –

a. for implementing arrangements made, between the Government of Barbados and the Government or Governments of any other part of parts of the Commonwealth relating to the establishment of a court of appeal to be shared by Barbados with that part or those parts of the Commonwealth, and for the hearing and determination by such a court of appeals from decisions of any court in Barbados; or

b. for the hearing and determination of appeals from decisions of any court in Barbados by a court established for any other part of the Commonwealth….

It is not immediately clear what might have contributed to this stark difference in the respective texts, except that they are fifteen years apart.

For us, seemingly, the JCPC also existed, though with nowhere near the degree of permanence and entrenchment accorded to that entity in Antigua & Barbuda and, clearly, Grenada.

In 1976, my quondam lecturer and subsequently Faculty colleague, Ms Dorcas White, published an extended essay rhetorically titled “Jettison the Judicial Committee: You t’ink it Easy?” More than four decades later comes the equally rhetorical response, “No, Dorcas, we know it ain’t!”

Whether owed to popular apathy or an antipathy towards the regionally assembled structure, any jettisoning seems a long way off.

The Jeff Cumberbatch Column – The Saving Law Clause and Our Highest Court

A few Barbadians are sometimes given to refer, rather quaintly, to the local Parliament as the “highest court in the land”. Since our Parliament is patently not a court of law or of anything, the use of the expression is incorrect. It has its origins in the existence of the House of Lords in England, the equivalent to our Upper Chamber, the Senate, being at one time the highest court in England. This is no longer the case, it having been replaced by the Supreme Court of the United Kingdom in 2009. There are still some similarities between court and Parliament however. Statements in both places attract absolute privilege in the law of defamation and they both have the power to commit for contempt. Over the past few days, two of the truly highest courts in their respective jurisdictions had the opportunity to pronounce on issues of undoubted importance that provide the material for today’s essay.

The Caribbean Court of Justice, still our highest court, in the course of its deliberation on the constitutionality of the mandatory death penalty that obtains on a conviction for murder in Barbados, made some interesting and long-awaited observations on the import of the controversial section 26 of the Constitution that immunizes from constitutional query for conformity with the fundamental rights provisions, any legislation that was enacted prior to the coming into force of the Constitution in 1966 and that has remained substantially unaltered law since that date.

Readers will recall that it was mainly this provision that “saved” the 8 per cent pay cut of public officers in 1991 from being held to be an infringement of their constitutional rights and also that its likely interpretation has recently forced a number of individuals, dubious of the constitutionality of our laws against buggery and gross indecency, to launch their offensive against these at the level of the Inter-American Human Rights Court rather than locally. The observations of the CCJ in this regard are therefore of paramount importance.

First, in exploring the rationale for this provision, the CCJ found two such.

“One, being the view of Lord Devlin in Director of in Director of Public Prosecutions v Nasralla, that the existing laws already embodied the most perfect statement of fundamental rights and that no inconsistency with the fundamental rights was possible, and the other being the view of Lord Hope in Watson that this was a device in the interests of legal certainty to ensure an orderly transfer of legislative authority.”

I have heard a variation of this latter rationale from the mouth of the late Sir Roy Marshall, one of the framers, who attributed it rather to a being dilatory strategy -to ensure order until the legislature was able to verify the conformity of all existing laws with the fundamental rights provisions in the Constitution. Indeed, this view is later confirmed in the judgment of the CCJ where reference is made to Lord Hope’s commentary in Watson where he suggested that the savings clause was a transitional arrangement.

“The idea that this should not be “forever” was implicit in Lord Hope’s commentary in that he suggested that the savings clause was a transitional arrangement. As we have observed, transitional arrangements must have a time limit. One cannot be in transition forever. The Belize Constitution addressed this by limiting the application of the savings clause for 5 years”  

The CCJ found this incongruent with the notion on which Independence was founded-

The proposition that judges in an independent Barbados should be forever prevented from determining whether the laws inherited from the colonial government conflicted with the fundamental rights provisions of the Constitution must be inconsistent with the concept of human equality which drove the march to independent status.”

And it noted further the necessity for the separation of powers where the issue is whether laws are in conformity with the Constitution.

“Ensuring that the laws are in conformity with the Constitution cannot be left to the legislature and the executive. That is the role of the judiciary, and accordingly it is the right of every person to depend on the judiciary to fulfil that role.”

As to the view that all rights a were already secured by the common law prior to independence and that the fundamental rights provision was meant to police post-independence laws only, the CCJ observed

“This view does not sit from the perspective of a former subjected people who are “Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory which includes the right to freely determine their political status and freely pursue their economic social and cultural development …”

The majority concluded therefore,

“The general saving clause is an unacceptable diminution of the freedom of newly independent peoples who fought for that freedom with unshakeable faith in fundamental human rights. The idea that even where a provision is inconsistent with a fundamental right a court is prevented from declaring the truth of that inconsistency just because the laws formed part of the inherited laws from the colonial regime must be condemned…”

This definitive pillorying of the utility of the savings law clause by our highest tribunal should alter fundamentally for the future the nature of the interpretation of the fundamental rights in Barbados. Of course, the CCJ is itself incompetent to remove the provision; this is exclusively a matter for Parliament. However, in light of the strictures against the provision in the judgment by a court whose holdings are binding on all others, Parliament should do the needful thing and consider repealing the provision.

Treating the importance of the CCJ’s treatment of section 26 in its recent decision has left me unable this week to comment on another ruling from a likewise highest court, the Supreme Court of the US, and its decision to uphold the travel ban on certain nationals by the President there.  I promise to do so in Part II of this piece.

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The Jeff Cumberbatch Column – The Rule of Law and the CCJ

Caribbean Court of Justice

One of the earliest formulations of the concept of the rule of law is to the effect that “the king himself ought to be subject to God and the law because the law makes him king…” Later scholars such as Coke also asserted the supremacy of law over the pretensions of the executive, and AV Dicey, who is popularly credited as being the father of the modern concept noted that the Rule of law, in the second principle, means “the equality of law or equal subjection of all classes of people to the ordinary law of the land which is administered by the ordinary law courts”. In this sense, the rule of law conveys that no man is above the law. Even the Government officials are under a duty to obey the same law.

Contrasting pronouncements during the past week by two leading regional government officials to, in one case, a ruling by the Caribbean Court of Justice and, in the second case, to some obiter dicta [observations not of crucial importance to the decision] in a number of its judgments, illustrate neatly the extent to which some administrations are prepared to abide with this aspect of concept of the rule of law.

The Caribbean Court of Justice [CCJ], a creature of the regional integration movement, has had, in its relatively short existence, to endure the peculiar ambivalence, dither and mutual mistrust of the regional states towards their own created institutions. The Federation may be justifiably cited in this connection as indeed may now the regional court.

Conceived of as encompassing both an original and an appellate jurisdiction; the latter as the region’s highest court to replace the Judicial Committee of Her Majesty’s Privy Council, the court has striven over the past twelve years essentially to limp along on the good leg of its original jurisdiction only, while, to date, no more than four jurisdictions have seen it fit to exercise their discretion to accede to the appellate jurisdiction. A cynic might reasonably be minded observe that the original jurisdiction is fully subscribed only because it is an inextricable incident of the Revised Treaty of Chaguaramas, to which all the member states of CARICOM are signatories, and not because of any overarching desire on the part of these states to have the court arbitrate their trade disputes.

So far as concerns the appellate jurisdiction, however, the position is markedly different and here, owing to a veritable “sancoche” of distrust of the capacity of a regional body effectively and judiciously to resolve private legal disputes in one jurisdiction, an outright popular rejection possibly based on partisan considerations in another, the lack of enthusiasm for resolving the matter by popular referendum in yet another and by virtue of judicial decision in a fourth, the court has enjoyed less than majority support from the regional states.

I am not certain to what extent this general air of disfavour might have influenced the recently announced stance of the governing administration in Belize to subject to parliamentary debate and resolution by conscience rather than party whip, a recent ruling of the Court for that government to honour a multi-million dollar international arbitration award.

While this initiative might, on its face, smack of a clear contempt of the ruling by the CCJ, the Prime Minister has sought to justify it on the technical ground that it is not constitutionally permissible for money to be withdrawn from the Consolidated Fund without Parliamentary resolution. Although this argument may be legally sound, the absence of any enthusiasm by the governing administration for propelling the vote in a direction consistent with the ruling appears to demonstrate a reluctance to comply therewith. The consequences of this have not gone unnoticed by the private sector in that state. In a report published in the Barbados Advocate last week, the president of the Belize Chamber of Commerce warned, “When you have a government or a country that has not paid its debt… the borrowing rate [on the international market] becomes a higher rate… the business community will pay that price…”

More in the region of fair comment and far less combative was the reaction of the Right Honourable Prime Minister, Mr Freundel Stuart, Prime Minister of Barbados, in his response to the not infrequent criticisms of the CCJ pertaining to the tardiness of the local court system and its consequence of infringing the fundamental rights of litigants. Terming these criticisms an “unnecessary slander” of the Barbados judicial system, Mr Stuart sought to argue that such delays were not peculiar to Barbados but were of regional incidence and contrasted the comparatively less salacious handling of the matter by the JCPC which remains the highest tribunal for most of the regional jurisdictions.

It is indeed difficult to defend a cogent charge of judicial tardiness and the Prime Minister’s justification that it also happens elsewhere would not, as he well knows, suffice to absolve an accused from guilt of an offence or a defendant from liability for a civil wrong.

Mr Stuart is, understandably, clearly nettled by the CCJ’s adverse comments concerning the nation’s court system. Given that a significant part of that delay is owed to adjournments caused by the unavailability of counsel in the matter, Mr Stuart and his learned Attorney General may thus find some assistance in a recent decision of the High Court in England.

In Bates v Post Office, when a date for the first case management conference was ordered, the clerks to leading counsel for the claimants advised that they could not attend on that date. The judge then informed the parties that a formal application to move the date would be required but this was not done and the judge consequently refused to change the date. At the conference, a substantive hearing was scheduled for a date in November 2018. This time, leading counsel for the defendant advised that he was unable to make that date because of a prior commitment in the Chancery Division, and both parties requested that the date be moved into 2019. Fraser J refused the application observing, “Fixing hearings around the diaries of busy counsel, rather than their fixing their diaries around this case, is in my judgment fundamentally the wrong approach.” He further remarked wryly that fixing hearings around the availability of counsel “has all the disadvantages of doing an intricate jigsaw puzzle, with none of the fun associated with that activity…

Indeed, a reading of the entire decision would repay study.

The Jeff Cumberbatch Column – The Mirage of Integration (ii)

Caricom“The Community and Common Market are intended to promote the coordinated development of the region and to increase intra-regional trade thereby reducing dependence on extra-regional sources. The community will institutionalize the machinery for the many shared services, which already exist and which even the most prosperous of the More Developed Countries, could not operate on its own.” –

Errol Barrow, (July 4, 1973) when the Treaty of Chaguaramas was signed, establishing the Caribbean Community and Common Market

More than forty years after the founding fathers of the Caribbean Community [CARICOM] initiated that regional project, the process of true integration, as opposed, perhaps, to cooperation at carefully chosen levels, has been scarcely advanced. Indeed, the three leading institutions that might have served as most cogent evidence of a deepening regional integration appear currently to be battling against the odds for relevance and for their continued existence in their originally contemplated forms.

The University of the West Indies [UWI], an institution that preceded the formation of CARICOM, but fittingly symbolic of the regionally integrated effort in tertiary education and developmental research, struggles to maintain its unitary character through the One University initiative, although the fight may have already been lost so far as the traditional professional disciplines of Medicine and Law are concerned.

West Indies cricket, for decades a highly successful example of what we may achieve together, has succumbed to the effects of indiscipline, inconsistency and shallow concentration of some of its players and is currently placed near the bottom of the world rankings in those longer versions of the game that we once ruled as champions. The recent trifecta of victories in global contests should have captured the popular regional imagination of a soonest return to superiority.

At the same time however, it has served to expose to universal scrutiny the festering sore that constitutes the industrial relation between the players and the West Indies Cricket Board, scarcely a recipe for prospects of future success.

Now, in consequence, some regional heads of state, rather than seeking to use the moral authority of their offices to mend the broken fences between the Board and the players, for reason (s) not immediately clear to this writer, have sought to demand the removal of the constitutionally elected directorship of what is essentially a private organization and to establish some other body more acceptable to them in its stead.

I dealt with this matter in the first part of this essay last week and the suggestion from some readers that the heads of government might, as a last resort, simply refuse to allow the WICB to stage matches under its auspices in their respective jurisdictions is liable to create more problems than it might ever resolve, for all concerned, not excluding those leaders who might think of playing this card.

A third regional body, itself created by international treaty, has suffered perhaps the “most unkindest” cut of all. The Caribbean Court of Justice [CCJ] established by the regional constitution to interpret that Constitution itself, the Revised Treaty of Chaguaramas, and to replace the Judicial Committee of the Privy Council as the final appellate court for regional jurisdictions, has failed spectacularly to capture the regional imagination in its secondary guise.

Four jurisdictions only have found it possible so far to accede to its apical appellate function -Barbados, Guyana, Belize and Dominica- although, to be fair, other voices have been raised in favour of accession, and Antigua & Barbuda has put arrangements in place for a constitutionally required referendum to be able to replace the JCPC which is deeply entrenched in its Constitution as that nation’s final court.

Others appear, however, to languish under the disablement of partisan political dissension, an absence of political will or plain suspicion as to the international allure of any regional court. The insecure regional phenomenon of “how we go look (to others) ” is apparently not restricted to the populace of any one country only.

Not that one would think that the integration project is anything other than alive and well if we are to judge from the lofty aspirational speeches of regional leaders. Hear former Prime Minister of Trinidad & Tobago, Mrs Kamla Persad-Bissessar in 2013, “Our challenge is not to be decisive, not to hesitate, not to reverse, not to turn around. Our challenge is not to delay and loiter over hardship, adversity or difficulty, but to persist and to rally on our course towards the realization of our destiny that our forefathers have set for us…”

And Mrs Portia Simpson Miller, the former Prime Minister of Jamaica, “CARICOM…represents the vision and aspiration of a forefathers for a strong integrated region which would provide the best prospects for economic and social development…”

Another former leader, President Ramotar of Guyana was more realist in his assessment, “…We have studies on transportation, we have the Regional Financial Architecture, the free movement of people and hassle fee travel is vital and very important in helping us to strengthen our integration movement. This implementation deficit needs to be resolved lest we find ourselves guilty of a commitment deficit…”

This observation by ex-President Ramotar, especially those aspects concerning free movement and hassle free travel, provides an ideal point of departure for the third part of this piece; the pledged interstatal commitment to regional freedom of movement of CARICOM nationals and its collision with a contrasting amalgam of shoddy generalization, of a select xenophobia, of jingoism and of a crass appeal to national sovereignty whenever reminded of voluntarily undertaken obligations that bedevils our best efforts to act as committed regional partners in any integration exercise in this context.

To be continued…

The Jeff Cumberbatch Column – On Nearing Fifty… (i)

Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

MUSINGS: On nearing fifty… (i)

10/18/2015
By Jeff Cumberbatch

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TALES FROM THE COURTS – CARIBBEAN COURT OF JUSTICE Application No BBCV2013/001, Between Timothy Walsh APPELLANT And Stephen Ward, Bjorn Bjerkham and Nature’s Produce Inc. RESPONDENT [2015] CCJ 14 (AJ) XXIX

Chief Gibson Marston Gibson

Chief Justice Marston Gibson

As we all know by now, the CCJ has been even more harshly critical of the delays in the Barbados courts than ever before, for good reason.[…] Continue reading

Barbados and CCJ in a Tiff

Sir Dennis Byron, President of the CCJ

Sir Dennis Byron, President of the CCJ

One of the most controversial court decisions handed down by the United States of America Supreme Court is Roe v.Wade in 1973. To this day the decision continues to stoke public debate about the license humans should be given to determine when to abort the life of an unborn child. It is also interesting to note one of the highest courts in the United Kingdom – still the final court of appeal for the majority of former British colonies – allows Dissenting Opinions by the Judicial Committee of the Privy Council.

In 2001 the Caribbean Court of Justice (CCJ) was established. It is the original original jurisdiction to translate and arbitrate matters arising from the Revised Treaty of Chaguaramus. Many suggest it is unfortunate only Barbados, Belize and Guyana so far, are the countries to recognize the CCJ in its appellate jurisdiction.

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The Caribbean Court of Justice – A Cautionary Legal Tale

It is most unusual and judicially improper for a Court to publish its judgment in the public media before it has been delivered and communicated to the litigants and their legal representatives. This is what the Caribbean Court of Justice did in the Caribbean Court of Justice Civil Appeal Case No. BBCV2014/002 – Systems Sales Limited v. Arlette O. Browne-Oxley and Sonja Patsena Suttle – a procedure that has never occurred in the Supreme Court of Barbados since our independence.

The Judgment which on the face of it reads “The Judgment” of Justices Wit, Hayton and Anderson which was delivered by The Honourable Mr. Justice Hayton on the 25th day of November 2014 was never read nor delivered to the parties or their Attorneys-at-Law on the 25th November 2014. The Attorneys-at-Law for the Applicant received an electronic copy of the Judgment on the 26th November 2014 and the signed hard copy was received by the Applicant from the sub-Registry of the Court (the Barbados Supreme Court Registry) on the 4th December 2014. Strangely enough, a media release number 28-2014 dated the 25th November 2014 was issued by the Court to the media and published on that same day. It is to be noted that the “media release” the electronic copy and the signed hard copy all bear the date 25th November 2014 even though they are not identical documents. What has therefore resulted is that the Court has published three different official judgments on the same case.

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Caribbean Court of Justice Judge Gets Greedy

CCJ Judges

CCJ Judges

When and where ignorance rears its head it must be exposed for what it is. When it occurs within the realm of the judiciary that is responsible for the administration of justice – the foundation of an orderly society-  it definitely is cause for concern.

The incident  reported by the Trinidad Express that a Caribbean Court of Justice (CCJ) judge and his wife attempted to sell (scalp) two complimentary tickets, and when the driver of the CCJ ‘humbly refused’ and expressed his disappointment that the CCJ’s wife behaviour – the instigator of the scalping –  reflected poorly on the CCJ, the CCJ judge  asked for a replacement driver.The story gets more intriguing.

The CCJ acceded to the request of the judge and assigned a replacement driver, the attempted scalper (the judge) refused to accept the new driver and demanded an allowance to privately recruit a driver.  Although the CCJ Registrar and Chief Marshal Paula Pierre [who] analysed the incident and the judge’s demand in correspondence to the [Regional Judicial and Legal Services Commission] RJLSC, dated April 29, 2013, concluded that “…the Court administration has been delegated the responsibility to select and appoint drivers for the organisation. This would include the judges’ drivers and the messengers/drivers for the office vehicles. The Court would have the corresponding responsibility to pay the judges’ drivers under the terms and conditions set out… This does not mean, however, that a judge cannot hire his own driver, at his own expense, for unofficial commitments.”

Interesting to note despite the findings of the CCJ Registrar, a driver’s allowance was approved for the attempted scalper (the judge). The approval request submitted to Caricom from the underutilized CCJ  again is interesting- “At its 87th meeting, the Commission approved an exception to the current Terms and Conditions of Judges approved by the Heads and Governments and indicated that a monthly driver’s allowance be paid to Justice (name called) in the amount of US$1,226.33 without benefits retroactive to October 2013. This is in lieu of having a driver from the Court. The judge is therefore expected to make his own arrangements with regard to retaining a driver to meet his needs.”

BU regards the decision of the CCJ and Caricom to approve an allowance, AND, the behaviour of the CCJ judge and his wife to be the highest level of ignorance in response to a trivialism. This naked level of poor decorum coming from the highest court in the region should provoke Caribbean citizens to take note.

BU compliments the driver whose behaviour, as reported, was more judicial then the judge.

Read the full text of the report .

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Prime Minister Stuart: Life in Barbados Continues as Normal

Submitted by Douglas
Prime Minister Fruendel Stuart

Prime Minister Fruendel Stuart

Prime Minister Freundel Stuart delivered a wide ranging address at the Democratic Labour Party’s St. Philip North Branch meeting at the Hilda Skeene Primary School on Sunday, 13thOctober 2013.  In a packed room of branch members and party supporters, the DLP President and Prime Minister took the opportunity to thank the constituents of St. Philip North for their overwhelming support for Member of Parliament and Minister of Transport and Works, Michael Lashley in the February 2013 General Elections.

He then went on to reassure those gathered that life in Barbados is normal despite what they had been hearing from an Opposition which he described as, “a hastily put together coalition of the restless, reckless and the rejected.”  He dismantled all of the recent Opposition attempts to foment unrest in Barbados by explaining the country’s position as it relates to the management of the economic challenges by protecting the foreign exchange reserves through the deficit reduction programme introduced in the 2013 Budgetary Proposals.

His wide-ranging presentation dealt with the payment of UWI tuition fees by Barbadian students, the status of temporary employees in the public service, the Public Accounts Committee of Parliament, the Transport Board and the CCJ’s Judgement in the Shanique Myrie Case.

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Shanique Myrie Goes to Court

Shanique Myrie

Shanique Myrie

The Shanique Myrie matter is currently being heard before the Caribbean Court of Appeal (CCJ) and is being followed closely by BU. Frankly it appears both sides have been …  By showing itself to be an itinerant court it shows how the CCJ is configured to deliver justice in a region which may require such flexibility given our geographic and economic diversity.

Something however has bothered the BU household since the Shanique Myrie vs Barbados matter with  Jamaica subsequently given permission to intervene. While the CCJ has the jurisdiction to hear an original application dealing with the Treaty of Chaguramas, it does not have the jurisdiction to hear an original application dealing with the civil and criminal cases of assault. BU’s view of the matter is that the alleged assault took place in Barbados and therefore must be heard before the Barbados courts.

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CCJ Justices Condemn Barbados JUDICIARY

CCJ Justices

During the recent sitting of the Caribbean Court of Justice (CCJ) in Barbados, BU has received information from a credible source that the CCJ justices met with Barbados’ judges and expressed to them their displeasure and dismay at the state of the Barbados courts. While the CCJ placed all the blame at the feet of the Barbados Judiciary, BU feels that the Registry must share this blame equally.

The source of the massive build-up of 3,500 cases that have remained unheard for years, or part-heard for years or on which judgements have been undelivered (reserved) for years stems from the time of the appointment of Sir David Simmons as chief justice, it can be revealed.

Prior to the appointment of Sir David Simmons, cases were motored through the courts by the lawyers themselves, who had to answer to their clients for delays or a failure to adequately prosecute matters.

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Shanique Scores First In The Shanique Myrie Versus Government Of Barbados Matter

Shanique Myrie

BU has resisted writing – up to now – about the Shanique Myrie matter. Many disagreed with Shanique Myrie’s legal advisors who made the decision to access the Caribbean Court Justice (CCJ) to rule on her (Myrie) right to move freely under the Revised Treaty of Chaguaramas. After yesterday’s ruling by the CCJ to give special leave to Myrie to argue her case before the court, she must feel vindicated. This is against the background that many of our local legal beavers had opined that the CCJ has no jurisdiction in the matter until the case came to them on appeal from the Barbados courts. Barbados because we are a member of Caricom is bound by the interpretation of the  Caribbean Court of Justice  (CCJ) in all matters as it relates to the Revised Treaty of Chaguaramas.

If we suck all of the emotion out of the matter, the Shanique Myrie versus the Government of Barbados case will be followed with great interest across the region. To what extent will this case threaten the discretion which traditionally has been exercised by officers at ports of entry in Caricom countries? If Myrie continues her winning ways, it potentially could provoke some  countries  who are signatories, to question obligations under the Revised Treaty of Chaguaramus as it relates to free movement of people.

To rub salt into the wound for some Myrie was awarded cost. To be fair it should be noted that at this stage the CCJ has given special leave to hear this matter i.e. the CCJ believes there is a case to be made. Myrie’s legal team now has to argue the case.

The following is reproduced from the Barbados Advocate and gives a good summary of the special sitting of the CCJ on the matter.

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