CCJ Dismisses Appeal of the Estate of Marjorie Ilma Knox v John Vere Evelyn Deane and others

Posted on April 30, 2021 by David

The feud between the Knox and Deane families spans decades. Several of the protagonists et al have crossed have shuffled off this mortal coil. The one good the matter has presented is to give the Caribbean Court of Appeal (CCJ) another opportunity to ridicule the supine nature of our justice system.

May this matter rest.

Media Release – CCJ Dismisses Appeal of the Estate of Marjorie Ilma Knox; Calls Delay Unacceptable

29 Apr 2021

In a judgment released today, the Caribbean Court of Justice (CCJ) dismissed the appeal of the Estate of Marjorie Ilma Knox in the matter of the Estate of Marjorie Ilma Knox v John Vere Evelyn Deane and others [2021] CCJ (AJ). However, the CCJ criticised the unacceptable and serious delay of the Court of Appeal of Barbados in delivering its judgment. The CCJ heard the appeal on 16 March 2021.

Access the full media release here: Media Release 04_2021.

Related Link: Kingsland Estates

Was the CCJ Wrong about Guyana?

Posted on July 10, 2020 by David

The following pieces of documentation will be of interest to members of the BU family who are keenly following events unfolding in Guyana.

Was the CCJ wrong in its recent judgement?

Credit: Pachamama

Letter to Guyana’s Chief Election Officer from GECOM and his reply

Senator Caswell Franklyn Speaks – Poor Orlando Harris- Screwed Twice by CCJ

Posted on May 16, 2020 by David

As far as I am concerned May 7, 2020, the day that the Caribbean Court of Justice (CCJ) delivered its judgment in the case Chefette Restaurants Ltd versus Orlando Harris, will go down as one of the darkest days in the history of workers rights in Barbados. Admittedly, I am stunned that the award granted by the Court of Appeal was reduced from $95,089.13 to $31,274.78 but that aside, I am more concerned about the inconsistency of the decisions, involving workers, coming out of the CCJ.

On July 18, 2018 the CCJ delivered its judgment in the case between Patrick Hill and Sagicor Life Inc. where the court acknowledged that it did not have jurisdiction to hear an appeal that came from the Severance Payments Tribunal. At paragraph 2 of that judgment the court said, in part:

“It is trite law that, as specially created statutory tribunals are outside the normal courts’ structure, rights of appeal from such tribunals do not exist unless they are expressly conferred by a statute that determines the scope and nature of any appeal. In the interests of providing a simple, speedy and cheap procedure it is common to find rights of appeal restricted, especially where the members of the tribunal will have plenty of specialist experience in the matters coming before them. Thus, there may be no appeals on questions of fact, only on points of law, and it may well be that only one tier of appeal is available on points of law, as in s 39 of the SPA.”

The CCJ cemented the point by going on to say at paragraph 7 of the same judgment:

“If there were to be any exceptional intention to extend rights of appeal from statutory tribunals all the way up to the CCJ, so detracting from the speed and cost-effectiveness of a tribunal system, surely such extension would need to be spelled out.”

As far as I’m aware, industrial relations practitioners accepted the CCJ’s judgment and would have advised their clients that appeals, from the statutory tribunal called the Employment Rights Tribunal (ERT), ended at the local Court of Appeal. The act of Parliament that established the ERT did not spell out a role for the CCJ as that court ruled in 2018.

The people of this country must now wonder, what is responsible for this about turn of the CCJ. This is the highest court of Barbados and it can ill-afford to be erratic in its decisions. I am not for one minute suggesting that the CCJ should be infallible, but I would expect that if it made a mistake, it would do the honourable thing by acknowledging the error. Nowhere in the Chefette decision did the CCJ seek to overrule its previous decision.

Mind you, this same CCJ said that matters from statutory tribunals should not come to them, unless it is spelled out in the statute. Nowhere in the Employment Rights Act is a role spelled out for the CCJ. The people of the Caribbean deserve better than this!

Since I am dealing with the Chefette case, there is one other aspect that troubles me. Using the CCJ’s reasoning, the court should have awarded Mr. Harris the sum of $40,707.66 instead $31,274.78. The last sentence in paragraph 4 of the judgment states:

At the time of his termination he had retained his position as acting manager and was earning a gross monthly salary of $4,200.00.

The CCJ agreed that Harris was entitled to three weeks’ pay for each of the 14 years that he was employed. $4200.00 per month is equivalent to $969.23 per week, that is 4,200 x 12 = 50,400 which is his annual salary. Divide that figure by 52 weeks in a year to get a week’s pay.

His award should therefore have been 969.23 x 3 x 14 = 40,707.66. Using the figures in the CCJ’s judgment, the award would have been short by $9,432.88.

A CARICOM ADMINISTRATIVE TRIBUNAL

Posted on February 21, 2020 by David

Submitted by Caleb Pilgrim

CARICOM, the GOB and Minister Colin Jordan are perhaps to be congratulated on the recent, belated establishment of a CARICOM Administrative Tribunal and its inauguration in Bridgetown, as reported this past Monday.

However, I would be remiss if I did not draw to the readers’ attention relevant historical antecedents and the fact that the GOB must ensure that Barbados is adequately represented on the Administrative Tribunal, if only to keep the Tribunal honest.

Most, if not everybody knows that for many years, the CCJ, despite having Justices from various jurisdictions, did not include a single Justice from Barbados, and often roundly condemned the Barbados Judicial System.

The origins of the new Tribunal lie in the case of Johnson v. CARICAD, the second case filed under the Court’s Original Jurisdiction. Plaintiff, a Barbadian, had been employed as a Head of Administration at CARICAD, a CARICOM Regional “Institution”. She had been summarily dismissed from her position after seventeen years service. Her dismissal occurred the first morning she returned to work after she had completed her approved study leave. Plaintiff had received no notice prior to termination.

Legal proceedings ensued shortly thereafter.

The CCJ subsequently ruled that it lacked jurisdiction on the grounds that CARICAD, despite its legal status as a CARICOM “Institution”, was not “a competent defendant”. The Court’s decision effectively meant that no Barbadian employed by a Regional Institution could obtain legal redress before the CCJ, regardless of injury.

The day after the CCJ dismissed the Plaintiff’s action, Plaintiff filed before the Barbados High Court. There the matter has remained for more than 12 years. Plaintiff made multiple applications in the interim. None of these applications were ruled upon, except in one instance where the then Master ruled, then vacated his ruling, then referred the matter to the then Registrar, who then went on leave and tragically died without ruling. The Master then retired. And there the matter there remained stymied, pending before the Barbados Court. Plaintiff had only been terminated in 2007.

It was in this context, 11 or 12 years ago, that I argued (in an open letter to the CARICOM Secretary General) for the establishment of a CARICOM Administrative Tribunal. (see attached).
https://www.stabroeknews.com/2009/07/07/opinion/letters/there-is-need-for-a-caricom-administrative-tribunal/

I had also delivered a lunchtime lecture at the DLP George Street HQ urging the need to establish a CARICOM Administrative Tribunal. (See attached).
http://caribbeancourtofjustice.blogspot.com/2009/12/caricom-ideal-of-good-governance-three.html

The need for such a Tribunal was also at the root of a Draft Statute that I presented at one of the seminars arranged by the Cave Hill Law Faculty. (See attached)

Law teaches that there is no wrong without a remedy. However, age and experience prove that such is not always the case. The new Tribunal should, in theory at least, help to remedy mischiefs where deserving Plaintiffs (such as the Plaintiff in Johnson v. CARICAD, and other unsung heroes) injured by the lawless actions by employers of regional “Institutions”.

Dr_CalebPilgrimfinalpaperfinal2003

CCJ Has Ruled – Lawful Way Forward Imperative

Posted on July 20, 2019 by David

Press Release, Guyana Trades Union Congress – 20^th July 2019

The Guyana Trades Union Congress (GTUC) calls for level headedness to prevail in the interpretation of the Consequential Orders of the Caribbean Court of Justice (CCJ). Those orders specifically address three areas of focus for resolution on the way forward since the 21^st December 2018 no-confidence vote against the APNU+AFC Government was declared validly passed. These are- the Executive, the Legislature/Parliament, and GECOM. The Government and Opposition have accepted the rulings and orders but once again have different interpretation how these should be realised.

The Executive (Government) and Parliament (Legislature)

The Executive in this current environment has been referred to by the CCJ as having “caretaker” status and advised that in this “role it should be restrained in the use of its legal authority.” There is no precise guideline/limitation on what a “caretaker” government means and what precisely constitutes “restrained in the use of legal authority” suited to our indigenous reality. This is why Government and Opposition must engage to establish the constrains to government functioning during a period like this that will be acceptable to both. It is not for Leader of the Opposition Bharrat Jagdeo to determine what these must constitute and for the Government to act out of consort for the bonafide concerns of the Opposition.

Further, the CCJ as per its release dated 12^th July 2019 ruled “Article 106 is clear and it should be followed.” Article 106, which is titled ‘The Cabinet’ has seven clauses. And whereas Clause 6 says “the Cabinet including the President shall resign if the Government is defeated by a vote of the majority…;” Clause 7 says that “[n]otwithstanding its defeat, the Government shall remain in office…and shall resign after the President takes the oath of office following the election.” We should all acquaint ourselves and abide with the seven clauses of Article 106 and allow the Government to use its legal authority to conduct the business of this country. Anything outside of this is anarchy.

Both Opposition and Government must go back to Parliament to address Article 106 in its entirety. Respect for the CCJ’s ruling would see adherence to this, what should happen next after a confidence vote is passed, and the fact that litigation was a contributing factor in putting a pause on election being held “within three months.” GTUC is well aware returning to the National Assembly may appear as though one side is losing ground, but this is not about losing ground it is about saving Guyana, utilising law and order.

The nation has gone past the 90 days as prescribed in clause 7 to hold an election, which kicks in the other conditionality of “or such longer period” as to when election can be held. And outside of GECOM, a constitutionally independent body, stating its readiness to holding election, the extant clause requires activation by “resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine.” Government and Opposition must return to the Assembly to give effect to this clause. Why is there no effort to seek a constitutional resolution as instructed by the CCJ as opposed to a political one with the potential for conflict?

This nation can take the example of political patience and respect for the Rule of Law being faithfully exhausted in other societies. Take the United States (U.S) and United Kingdom (U.K) for instance, they are utilising the Judiciary and Legislature to resolve serious differences with President Donald Trump administration, and leaving the European Union as with the UK As we watch and see the methodical and patient pursuit and execution of the law, why aren’t our politicians learning and adopting these best practices of resolution of conflict. This nation must not be torn apart every time there is political difference and the issue of election comes up.

Election seems to be an opportunity not just to pursue a particular path of development but also to drive wedges between our people. It’s a shame our 21^st century politics reflect the backwardness of the 19^th century and anti-progressive societies. Gut feelings and passions have their place, but we cannot depend on that in matters relating to governance where the Rule of Law must take precedence.

GECOM

There is no doubt election has to be held. This is not a willy nilly process and it is one that has serious implications for all of us and the way forward.

We remind this nation in 2006 then President Bharrat Jagdeo, himself faced with an electoral process, in an address to the nation said, “The law says that GECOM shall define the form of verification of the list or may decide on verification and will decide on what form it will take. Not the PPP, not the PNC, not any party, GECOM. That’s a constitutional body, independent just like the courts.” Neither the Constitution nor Elections Laws have changed since then. It is therefore an act of serious concern when a different posturing- seeking to dictate and malign personnel and the operations of GECOM- is now being pursued with a bullhorn, misrepresenting GECOM’s processes and the pathway to holding an election.

Similarly, as per CCJ release dated 12^th July 2019, “As to the precise orders it should make, the CCJ cautioned, however, that it is not, ‘the role of the Court to establish a date on, or by which, the elections must be held’”.

Clearly, by now society should realise that despite the rhetoric, politicking and misleading statements we have come out of the CCJ empowered with the understanding that the no-confidence motion was validly passed, the process used to appoint the Chairman of GECOM was in violation of the Constitution, and the understanding that according to constitution GECOM is an independent body. Whereas this may not be pleasing to some or a loss to those looking for a different ruling, what is required is that we as a nation allow respect for the Rule of Law and do not interfere with a duly constituted body for election processes.

A peaceful way forward is imperative

Stirring up anger and inflaming passions as a means towards a political end have the potential for serious racial confrontation in this country. We should avoid this at all cause, for there will be no victors only losers. We also leave ourselves vulnerable to external forces. The legal system is obviously working if we allow it to work, if we respect its ruling and if we allow a level of integrity and good will to guide our interpretations.

Both sides must exercise good faith and trust and put together agreed mechanisms how government must function in a caretaker mode. Both sides must return to Parliament and execute their duty consistent with the Constitution. It is a demonstration of good will and willingness to work together to arrive at a mutually satisfying

Both sides operating in good faith will better command respect and trust that they are capable of resolving the current impasse and not sacrificing the well-being of supporters for political gain. They must give leadership and guidance to get out of this political morass with all its potential hazards at this juncture of our growth. Equal onus is on the Leader of the Opposition to be responsible in his use of language and to desist from making misleading statements that will play to those who are vulnerable and easily influenced.

An era that has come to an end whereby if any one group believes that they can govern at the exclusion of any other, with mere token representation to window dress inclusion, that will not be acceptable. Hence political gamesmanship must not take precedence over wise decision-making in keeping with the Rule of Law.

The GTUC is concerned about those whose only interest is seemingly securing their individual and corporate interests at the expense of the working class. There is no evidence to date of genuine efforts to build on the foundation of creating a political system of inclusion where all can benefit and feel valued. There is a standstill in development and factoring the needs of diverse communities. The essence of grassroots development is lost to this era of politicians on all sides, replacing it with avaricious and self-serving behaviours.

Say what you will about Cheddie Jagan and Forbes Burnham they had a genuine interest in the development of this nation and its people. We are yet to see 34 years after Burnham’s passing any vision, any development that matches his era. We are yet to see 22 years after Jagan’s passing the willingness to sit and negotiate with his opponent across the table.

The Jeff Cumberbatch Column – Doing Things with Rules II

Posted on June 30, 2019 by David

Another intriguing issue on the law relating to governance that arose for discussion in the recent Caribbean Court of Justice decision on appeal from Guyana on which I commenced discussion in this space last Sunday was the seemingly trite one of whether a motion of confidence that is expressly provided for in Article 106 (6) of the Constitution contemplated a similar result as a motion of no confidence.

One would have instinctively thought the issue of confidence in a government should be freely available in a democratic society to any member of Parliament, although the precise form in which it is cast would of course differ depending on the member’s sympathies (confidence) or dissatisfaction (no confidence) with the governing administration. According to this, the government would of course seek to have confidence in itself expressed by the Parliament, while; to the contrary, the Opposition forces would naturally attempt to sway the parliamentary sentiment to its side by moving that there is no confidence in the government.

However, in the case under discussion, argument before the Court on this point was joined because of the Respondents’ sophist submission that there was a fundamental difference between a motion of confidence and a motion of no confidence; that the political result of a Government’s defeat on these respective motions drastically differ; and that the consequences set out in Article 106(6), which prescribe that the government must resign if it is defeated on a motion of confidence, are inapplicable to those circumstances when the government is defeated on a motion of no confidence.

Interestingly enough, they relied for these arguments on the authority of a passage from a briefing paper that commenced its commentary by observing-

“[i]t is a core convention of the UK constitution that the Government must be able to command the confidence of the House of Commons. The traditional position was that a Government that lost a confidence vote would resign in favour of an alternative administration, or the Prime Minister would request a dissolution from the Queen, triggering a general election…”

That this core principle of the Westminster system exists locally has been established by our own experience in 1994; indeed it would appear therefrom that given the practicalities of governance, the measure once passed does not even have to attain the constitutionally stipulated majority to be effective.

In his leading judgment, President Saunders was in no doubt that this principle also applied to Guyana and that by whatever name it might be titled, a determination of such confidence was an intrinsic feature of most Westminster-styled systems of parliamentary governance. In his words,

“The fact that Article 106(6) speaks of “a motion of confidence” and not a motion of no confidence is unimportant. It does not affect the operation of the principle. These are mere linguistic differences denoting different sides of the same coin. Motions of confidence are used strategically, whether initiated by the government or the opposition, to serve their own political ends. In the one case, the aim of the government supporter moving the motion may be to demonstrate Parliament’s confidence in the government at a period when the government or the state as a whole is experiencing challenging times…”

My observation here is as to the slenderness of the majority required in Guyana to express no confidence in a government thereby forcing it to resign or call fresh elections. As we noted last week, it took the vote of a single member to ensure the defeat of the governing administration since his vote served to constitute a majority of all members of the National Assembly present and voting.

The equivalent Barbadian provision, cast rather under the rubric of causing the resignation of a Prime Minister is similar. According to section 66 (2) of the Constitution, the office of a Prime Minister shall become vacant…

If the House of Assembly by a resolution which has received the affirmative vote of a majority of all the members thereof resolves that the appointment of the Prime Minister ought to be revoked and the Prime Minister does not within three days of the passing of the resolution either resign or advise the Governor-General to dissolve Parliament, the Governor-General shall, by instrument under the Public Seal, revoke the appointment of the Prime Minister.

It will be recalled that in 1994, ALL members of the House were not present for the vote and so the motion was not carried in law although there was, ultimately, a dissolution of Parliament nevertheless and the calling of a general election. The question has frequently been asked whether such fundamental motions should not require a super majority such as the one is required for amendment of certain provisions of the Constitution, for example.

I suppose the answer lies in the possibility that an administration may gain office by a single seat or vote and hence it should also be possible for it to lose office by similar means. To adopt condign dicta from the judgment of Saunders P. when referring to minority or slender majority governments-

“The Constitution envisages, however, that such a government’s precarious hold on power is conditional upon no express motion of no confidence against it being validly passed by the majority of the members of the National Assembly.”

Or, as applied to our own circumstance, that the precarious tenure of the Prime Minister of such a government is conditional on no motion that the appointment of that Prime Minister ought to be revoked being validly passed by the majority of the members of the House of Assembly.

To be continued…

The Jeff Cumberbatch Column – Doing Things with Rules

Posted on June 23, 2019 by David

307

The notion that lawyers, and especially judges, know everything is doubtless premised on the variety of determinations the profession is obliged to make as part of its diurnal routine. Is a medical doctor liable for negligence? Did a Minister exercise his or her discretion properly? Did an accused intend to murder the deceased? These are but a few of the decisions that are matters of law and whose answers lie exclusively within the realm of legal theory. Of course, in some matters, a court will be assisted by expert evidence, especially when determining matters that depend on the practice of a particular profession. For instance, medical negligence will be found where the doctor fails to act in accordance with an accepted responsible body of medical practice. What constitutes such is a matter of evidence from a medical expert in the particular area in issue.

A similar determination arose this week in the Caribbean Court of Justice, where, as the highest court in the Guyanese legal system, it was called upon to pronounce on a number of issues concerning the law of governance in that jurisdiction. These arose out of the infamous no confidence motion brought by the parliamentary opposition against the governing coalition administration. I say infamous because it may be recalled that one member of the governing coalition parliamentary group chose to vote against his side and therefore to carry the Opposition motion by a tally of 33 votes to 32.

These matters managed to present a number of legal issues for the Court’s determination; among them, whether there was a difference between a no confidence motion that was not expressly provided for in the Constitution and a motion of confidence that was so provided? What constitutes the majority necessary for the passage of a no-confidence motion and whether the Court had jurisdiction to inquire into the issue of Mr Persaud’s [the MP who voted with the Opposition motion] qualification to be a member of the National Assembly.

Of these issues, I found the first to be the most intriguing and I have written in another capacity more times than one on the very point. The matter became a legal issue because the legal advisors to the governing administration were of the view that first, there was a difference between an absolute majority and a simple majority; and that 33 votes could not constitute a majority in a 65 member Parliament because a majority was half of the total plus one and, since there could not be 0.5 of a vote, half of 65 had to be rounded up to 33 and the added one would give a total of 34. Too besides, they argued further, since 33 was already a majority of 64 members, it could not also be the majority of 65, a grater number. Of course, this assertion took no notice of the reality that 34 was also the majority of 66, itself a greater number than 65.

I argued in one of my writings on the subject last year, relying on the learning in Robert’s Rules of Order that the use of the formula half-plus-one to constitute a majority is apt to cause problems. According to the text, “Suppose in voting on a motion 17 votes are cast. 9 in favor and 8 opposed. Fifty percent of the votes cast is 81/2 so that 50 percent plus one would be 91/3. Under such an erroneous definition of a majority, one might say that the motion was not adopted because it did not receive 50 percent plus one of the voted cast although it was, quite clearly, passed by a majority vote”.

A similar argument appeared to find favour with President Saunders who drew on his judicial experience of what constitutes a majority judgment.

“Since the Assembly comprises an odd number, there is no need to imply into the Constitution any formula for defining a majority as being ‘half plus one’. Indeed, as an American judge noted,12 the ‘50% plus one rule’ leads to illogical results when it is applied to odd numbers. So, for example, it is trite that when a Court of Appeal sits as a panel of three, a majority decision is 2:1. The Chief Justice was therefore right when she adjudged that a majority from among 65 members is a minimum of 33.”

It bears remarking that the learned Chief Justice of Guyana had also reasoned likewise although she appeared to base her determination on an obverse application of the golden rule by positing “if Persaud had voted against the no-confidence motion, the government would have accepted that the vote count of 33 is the majority of all elected members”.

In support of their argument, the lawyers for the governing administration had cited two authorities from Commonwealth jurisdictions. The CCJ found neither useful. As for the first, from Vanuatu, it related to a circumstance where an even number of members constituted the parliament.

Kilman was a case where the Vanuatu parliament consisted of 52 members. Only 51 voted on a particular motion that required an absolute majority. The result of the vote was 26:25. It was in this context that the court said as is stated above. Twenty-six votes could not carry the motion because what was needed was a majority of 52 and since 52 was an even number, in that specific context that majority could only be obtained via the formula of “half the Members of Parliament plus one”.

The second authority from Anguilla was also easily distinguished-

In that case the question concerned the number of members necessary to constitute a quorum. The Assembly comprised 11 members. The quorum requirement was two-thirds. Mathematically, two-thirds of 11 yields 7.3. The question was whether to constitute the quorum one should round up to 8 or round down to 7 members. The court held that since the concept of a quorum meant the least number possible for the valid transaction of business, one could not round down to 7 as that number would fall below the mandated quorum of 7.3. One should round up to 8 which would satisfy the quorum condition. Hughes v Rogers, therefore, has no relevance to the question at hand.

To be continued

CCJ’s Consequential Order Requires Guyanese to Unite

Posted on June 19, 2019 by David

Press Release submitted by Guyana Trades Union Congress (19^th June 2019)

CCJ’s Consequential Order requires citizens uniting to hold politicians accountable to a higher political order and love of country- not just power

The fundamentals of our democracy and regional integration stand strong in the decisions handed down by the Caribbean Court of Justice (CCJ), Tuesday 18^th June. The rulings- ‘no-confidence’ motion and appointment of GECOM chairman-of the CCJ is a signal that the integrity of our judicial system in Guyana and the Caribbean can be relied on to adjudicate disputes in any environment of partisanship and polarisation. This is important in a context that notwithstanding the many questions and aspersions made about the integrity of the system Guyana and CARICOM states can be proud today.

Respecting due process

The Caribbean through Guyana has set an example of how political conflicts can be resolved through the judicial process. A process that requires trust, confidence and belief that the judiciary is the final arbiter on interpretation of the laws and the guardian of same.

The Guyana Trades Union Congress (GTUC) is heartened that notwithstanding vocal acceptance or rejection of the High Court or Appeal Court’s rulings on the given issues, due process allowed the various stages of our judicial system to be rightfully granted all parties involved. The Government, Opposition and all society are bound by the rulings of the CCJ and neither party can today claim they were denied due process and equal access to this branch of government and finally to the CCJ. This is the fundamentals of our democracy reflected in the adherence to Rights and the Rule of Law. This is indicative of what good governance is all about.

Right to legal justice

But even as we mark this achievement let us recognise that it came only after many were believed to be figuratively kicking and screaming through the entire process, seeking after political responses and satisfaction (political justice) that presented risks of deeper chasms, with domestic and regional instability as opposed to a more rational and acceptable judicial pursuit that reinforces the rights of all, confidence in this arm of government and the separation of powers therein. It came notwithstanding the belief and projected comments that Government was holding onto power and amidst calls for them to step down even as they sought to defend their belief and right to pursue judicial settlement. This was a right that could easily have been denied had they bowed to pressure leaving many uncertain as to whether they were cheated out of government.

Peace through legal justice

Guyana and the Region have won. GTUC reiterates the call made on 21^st December 2018, when the Parliamentary vote was considered passed, that this is not a time for triumphalism or opportunity to create ethnic tension and divisions in society. The only victors here are all Guyanese and our branches of government that were allowed to deliberate consistent with the role of each. If we act contrary, likewise the victims will be all Guyanese and our branches of government, an untenable situation that will not serve the collective well. Let us claim victory as a nation. Peace, law and order and our judicial system remains intact. Together we must now build bridges to deepen our democracy and safeguard our nation for all Guyanese.

Building bridges and forging unity

We have to move forward based on the rulings and we must do so in an environment of mutual respect, consistent with the systems and recommendations that would guide our behaviour and steer the ship of state. GTUC reiterates its call to the Government and Opposition to meet and chart a way forward as to how government will function consistent with Article 106(7) of the Guyana Constitution. Management of the state is a day-to-day activity, failing which anarchy prevails. We call on the media and all Guyanese to rise to the challenge of building a better Guyana.

One with more tolerance and respect for the rights and rule of law; for all to be held accountable to these fundamental and universal principles of good governance; respect for the separation of powers, the independence of the judiciary and the rights of each to pursue legal justice which distinguishes us on the continuum of civilisation and political maturity. It is now time for our political leaders, supported by all stakeholders, to come together in determining the way forward as we continue to test and charter new waters. We must have a better Guyana for all.

Unchartered waters

We are reminded that there remains no convention or written guidelines how the society ought to function in a post “confidence” (no-confidence) environment. This the political parties must equally turn their attention to as matter of urgency. All of the political operatives over the years have been calling on citizens to put Guyana first. This is the time the GTUC calls on the politicians to demonstrate leadership that puts Guyana first. There can be no hesitation, no reluctance, no refusal or political showmanship to delay the arrival at a position of satisfaction to all sides that would best serve this country by ensuring inclusion of all and the protection of rights.

People’s power

The parties return to the CCJ on June 24^th to address the Consequential Order. We must go there with a plan as to how the country will proceed, in the interim and after the elections, consistent with Article 13 of the Guyana Constitution. It would be unfortunate to have the CCJ imposing on us what we are capable of determining. It would be an insult to our forebears who came together to fight common enemies and build Guyana. It would cast a dark cloud on our ability to unite for the common good and leave us vulnerable to internal and external destabilising influences. The jury is out now on the ability of Guyanese citizens to unite and hold the politicians of this country accountable to a higher order of politics and love of country not just power. In a democracy granting the power is ours to give, ours to influence and ours to deny.

CHIEF JUSTICE PROHIBITS PERSONS WITH DUAL CITIZENSHIP FROM BEING MEMBERS OF PARLIAMENT

Posted on March 29, 2019 by David

Submitted by Rickford Burke, President, Caribbean Guyana Institute for Democracy (CGID)

The Caribbean Court of Justice (CCJ) has announced that it will hear the no confidence motion appeal cases on May 10, 2019. CGID believes that it is therefore prudent for the APNU+AFC government to consider reconvening the National Assembly subsequent to the CCJ’s determination of the instant matters.

As reported by the Caribbean News Agency, on February 2, 2019, I, as President of the Caribbean Guyana Institute for Democracy (CGID), made the following statement in an interview with the Caribbean Media Corporation (CMC) on February 1, 2019, “Although such disqualification was not pursuant to an election petition, as the acting Chief Justice’s judgement seems to mandate, her order effectively disqualifies several sitting members of the National Assembly on both the opposition and government branches, including several government ministers, from being members of Parliament. Particularly, unless the Guyana Court of Appeal, or the CCJ, grants a stay of the judgment, government ministers with dual citizenship ceased to be ministers as of January 31, 2019.”

Article 155 (1) (a) of the Guyana Constitution, as well as the ruling of the Chief Justice and that of the Guyana Court of Appeal, make it pellucid that incumbent Members of Parliament who currently hold dual citizenship are disqualified from being candidates for the National Assembly and therefore cannot be Members of Parliament. The ruling of the Chief Justice in Compton Reid v Dr. Barton Scotland, Charrandas Persaud, et al, page 33, paragraph 82 states inter alia “I therefore hold that anyone who holds dual citizenship, that is a citizen of Guyana and of a foreign power, or state, as envisaged by Art 155 (1)(a) and therefore falls into this category of disqualified persons pursuant to 156(1) (d), should not and cannot be a Member of Parliament. As such the declarations sought in terms of paragraph one and two of the prayers for relief are granted. I therefore hold and declare that the second respondent is not qualified for election as a member of the National Assembly.”

Opposition leader Bharrat Jagdeo announced yesterday, March 29, 2019 that PPP Members of Parliament with dual citizenship will renounce their citizenship and potentially return to Parliament. This gimmick would be nugatory and repugnant to the ruling of the court. First, a mere renunciation of one’s foreign citizenship has no effect until that process is completed and a renunciation certificate is issued and produced. Second, according to the ruling of the Chief Justice, a certification of renunciation, after a disqualified person with dual citizenship has been already unconstitutionally elected to the National Assembly does not cure their disqualification and unconstitutional election.

Consequently, CGID believes that whether an incumbent Member of Parliament with dual citizenship renounces his or her current foreign citizenship or not, he or she would still be in breach of the constitution, and currently sit in the National Assembly unlawfully. Therefore, the basis for any incumbent Member of Parliament with dual citizenship to now return to Parliament, consequent to and in light of the ruling of the Chief Justice and the Guyana Court of Appeal, is inexplicable and contrary to Article 155 (1) (a) of the constitution. Clearly, their return to the National Assembly will be in breach of the section of the ruling of the Chief Justice that was upheld by the Guyana Court of Appeal.

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

Posted on December 30, 2018 by David

DAVID COMISSIONG, Barbados’ Ambassador to CARICOM

I suspect that the primary reason why the people of Grenada and Antigua & Barbuda voted on 6^th 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:-

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.
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.
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.
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!
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!
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!
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 – Criminalizing Attire and the Rule of Law (iv)

Posted on December 9, 2018 by David

“..that the people (including, one should add, the government) should be ruled by the law and obey it and
(2) that the law should be such that people will be able (and, one should add, willing) to be guided by it.”
– Geoffrey de Q. Walker, The rule of law: foundation of constitutional democracy, (1st Ed., 1988).

“The protection of the law implies that legal commands are uniform and general; that they cover all situations within the class they define and apply to all persons within those situations”- per Rajnauth-Lee JCCJ. [2018]

The remaining issues for the court in this case were first, the vagueness of section 153 (1)(xlvii) and its implications for the observance of the rule of law, and that of the legal consequence of the reproof given by the magistrate to the appellants on their initial conviction.

Vagueness

Vagueness encompasses twin considerations. A term or provision may be vague because it is not reasonably susceptible to meaning. This would include gibberish such as “fustum fumidos tantaraboo” that is incapable of any meaning at all. It would also include language expressed in such a way as to confound any ordinary reader as to its import. This would be instanced by the now notorious, but probably apocryphal, definition provision in the Nuts (Unground) (Amendment) Order of some anonymous jurisdiction-

“In the Nuts (Unground)(Other than Groundnuts) Order the expression nuts shall have reference to such nuts other than groundnuts, as would, but for this Amending Order, not qualify as nuts (Unground)(Other than Groundnuts) by reason of their being nuts (Unground)”.

The second instance of vagueness would be found in a provision that is capable of so many meanings that the reader would be unable to assert with any certainty which meaning is intended.

Readers will readily accept that either of these forms of vagueness is decidedly inapt for proscribing human conduct on pain of criminal sanction. President Saunders made this point at the outset-

“A penal statute must meet certain minimum objectives if it is to pass muster as a valid law. It must provide fair notice to citizens of the prohibited conduct. It must not be vaguely worded. It must define the criminal offence with sufficient clarity that ordinary people can understand what conduct is prohibited. It should not be stated in ways that allow law enforcement officials to use subjective moral or value judgments as the basis for its enforcement. A law should not encourage arbitrary and discriminatory enforcement…”

In his view, the section failed those tests. There was no clarity as to what would constitute an improper purpose, it was open to discriminatory application and neither an anecdotal but unexpressed assumption of the possible meaning or the suggestion by the Solicitor General that any potential vagueness could be removed if, when a person is charged, details are given of the improper purpose that prompted the laying of the charge, sufficed to remove the vagueness of the section; the latter especially because the arrest would have preceded the explanation. It thereby contravened the principle that the citizen ought to be made reasonably aware of what conduct might entail criminal liability.

This defect was further compounded by what President Saunders termed “the premise, inherent in the law, that there is attire that is wholly and exclusively male or female.” And, given that one universal principle of the rule of law requires that the laws, especially those that attract a penal sanction, should be clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights, the section here was undeniably in violation of this. This could entail one result only.

“The rule of law requires that legislation which is hopelessly vague must be struck down as unconstitutional. For all these reasons. (the fact that no one can say with certainty what an ‘improper purpose’ is or what male or female attire looks like, leaves transgendered persons in particular in great uncertainty as to what is and is not allowed, and to aggravate that injustice, gives law enforcement officials almost unlimited discretion in their application of the law) we hold that section 153(1)(xlvii) is unconstitutionally vague and, as it stands, fulfils no legitimate purpose.

Justice Anderson also agreed with this view in his judgment-

In purporting to criminalize cross-dressing for an improper purpose, section 153(1)(xlvii) appears to come exceedingly close to attempting to criminalize intentions or states of mind. It is clearly the case that the act of ‘crossing dressing’ is not itself unlawful per se. It is not an offence for males to dress in female attire and vice versa in a public place. The offence is committed only where this is done for an “improper purpose” (whatever that may mean). This suggests that what is being punished is not primarily the conduct of cross-dressing but rather the mental state of harbouring an improper purpose whilst being cross-dressed.

As did Justice Rajnauth-Lee:

“While it would be unrealistic to expect the ordinary citizen to be informed of the detailed contents of criminal statutes, the proper application of fair notice simply requires that it be possible for citizens to determine their legal duties and regulate their conduct in accordance with the prescribed laws in advance of acting.”

So far as the magistrate’s reproof of the accused (as they then were) was concerned, it will be recalled that this officer had instructed them that “they must go to church and give their lives to Jesus Christ, and had also advised them that “they were confused about their sexuality; that they were men, not women”.

President Saunders thought these remarks “inappropriate”. He averred-

Judicial officers may not use the bench to proselytise, whether before, during or after the conclusion of court proceedings. Secularism is one of the cornerstones upon which the Republic of Guyana rests. But these remarks went beyond proselytising. They revealed stereotypical thinking about transgendered persons….

Section 144 of the Constitution promises all persons charged with a criminal offence a fair hearing by an impartial tribunal. By reason of the remarks made by the Magistrate, the named appellants would have been justified in believing that in their case this promise was not manifested.

Commentary

This decision of the Caribbean Court of Justice illustrates the perniciousness of an unlimited savings law clause and the unexplained contradiction of its location in our Constitution. It would be trite to assert that Independence entailed for us in the region the sovereign ability to transform our societies in our own image and thus to abandon those hoary laws that regulated our pre-independence polities. A provision that would preserve laws enacted to regulate societies in which the majority of the current citizenry were not regarded fully human appears woefully irrelevant to the present circumstance.

In a previous column I queried the kind of thinking and discussion that would have so deeply entrenched the colonial court, the JCPC, in the Constitutions of Grenada and Antigua as part of the Schedule to their respective Independence Orders at that auspicious time. The savings clause is of the same ilk, seemingly structured to maintain ties to the former dispensation, although here through the preservation of the extent of freedom then existing. Many have argued that the circle of Independence is to be completed by attaining republican status. Maybe we first need to fashion our laws and their administration in our own image.

As for the decision itself, few readers would have failed to recognize that the improper purpose sought to be impugned, though assumed only, in the section would have been that of prostitution. While this, without more, would have been adequate perhaps for the purpose at the time the statute was enacted, it could scarcely subsist in a progressive Caribbean society now more mindful of the rights of individuals and the preservation of their dignity and autonomy. A provision that would render this immune from question is arguably deserving of contempt.

The Jeff Cumberbatch Column – Criminalizing Attire and the Rule of Law (iii)

Posted on December 2, 2018 by David

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The expression of a person’s gender identity forms a fundamental part of their right to dignity. Recognition of this gender identity must be given constitutional protection

–Per Saunders PCCJ in McEwan et ors. v The AG of Guyana [2018] CCJ 30

It is essential to human progress that contrary ideas and opinions peacefully contend. Tolerance, an appreciation of difference, must be cultivated, not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed

–Irwin Toy Ltd v Quebec (AG) [1989] 1 SCR 927.

In this, the penultimate part of this extended essay analyzing the recent decision of the Caribbean Court of Justice [CCJ] on the constitutionality of section 153 (1)(xlvii) of the Summary Jurisdiction (Offences) Act of Guyana, we examine the disposal of the first two of the claims made by the appellants. Readers will recall that this section criminalizes cross-dressing by men or women for an improper purpose not further specified. Last week, we treated the applicability of the savings law clause that the respondent prosecution had prayed in aid to justify the constitutionality of the provision.

It will be recalled that the leading judgment of President Saunders gave short shrift to this argument, principally on the basis that the clause was “corrosive” of the concept of constitutional supremacy and at odds with the constitutionally given power of judicial review. More commentators than one on the column queried the validity of this holding in light of the clarity of the provision. I suppose that that inquiry should have been made in 1966, in the case of Barbados, but so many anomalous matters in what was to become our Constitution appeared to have gone unquestioned then. In the judgment, the President averred,

even if one were to apply the clause fully and literally, because of its potentially devastating consequences for the enjoyment of human rights, the savings clause must be construed narrowly, that is to say, restrictively...[Original emphasis]

In the view of Saunders, there were essentially four issues that arose for determination by the Court. These were, namely, whether the section violated the appellants’ rights to equality and non-discrimination guaranteed to them by the Guyana Constitution; whether it violated their identically guaranteed right to freedom of expression; whether it offended the principles of the rule of law in light of the vagueness of the provision, especially with regard to the terms “improper purpose”, “male attire” and “female attire”; and whether the reproving remarks of the Magistrate were appropriate and, if not, their consequence.

Equality and non-discrimination

The argument of the appellants here was that the cross-dressing law infringed their fundamental rights in these regards because it is rooted in gender stereotypes of how women and men should dress. They averred that the section treats transgendered and gender-non-conforming persons unfavourably by criminalising their gender expression and gender identity in violation of Article 149D of the Constitution. That Article focuses squarely on inequality before the law and is distinct from, albeit complementary to, Article 149(1) that prohibits discrimination on specified grounds..

The leading judgment accepted this argument, finding that-

At the heart of the right to equality and non-discrimination lies a recognition that a fundamental goal of any constitutional democracy is to develop a society in which all citizens are respected and regarded as equal… Article 149 signifies a commitment to recognising each person’s dignity and equal worth as a human being despite individual differences.

and that-

The constitutional promise of equality prohibits the State from prescribing legislative distinctions or other measures that treat a group of persons as second-class citizens or in any way that otherwise offends their dignity as human beings.

While the Barbados Constitution does not expressly guarantee persons equality before the law, there is nevertheless section 23 that seeks to protect persons from discrimination on certain specified grounds. In any event, President Saunders made reference to the observation of the Committee on the Convention to Eliminate Discrimination Against Women, to which Barbados is a state party, to the effect that-

Inherent to the principle of equality between men and women, or gender equality, is the concept that all human beings, regardless of sex, are free to develop their personal abilities, pursue their professional careers and make choices without the limitations set by stereotypes, rigid gender roles and prejudices…

It was held ultimately that the section could not be reasonably justified in a democratic society such as Guyana because the section conduces to the stigmatization of those who do not conform to traditional gendered clothing and, mostly, because it criminalizes aspects of their way of life, thus enabling the State to unleash its full might against them… therefore section 153(1)(xlvii) violates Articles 149(1) and 149D of the Constitution.

Freedom of expression

In this context, the President first reiterated the significance of free expression to the democratic way of life-

Because it underpins and reinforces many of the other fundamental rights, freedom of expression is rightly regarded as the cornerstone of any democracy. A regime that unduly constrains free speech produces harm, not just to the individual whose expression is denied, but also to society as a whole. On the one hand, the human spirit is stultified. On the other, social progress is retarded. The fates of brilliant persons like Galileo, and Darwin, and countless others, sung and unsung, betray a familiar pattern in the history of humankind. Today’s heresy may easily become tomorrow’s gratefully embraced orthodoxy.

He also acknowledged that a person’s mode of dress might be regarded as a legitimate form of his or her expression-

A person’s choice of attire is inextricably bound up with the expression of his or her gender identity, autonomy and individual liberty. How individuals choose to dress and present themselves is integral to their right to freedom of expression. This choice, in our view, is an expressive statement protected under the right to freedom of expression.

And even though this freedom was subject , as in Barbados to reasonable limitations, these had to be demonstrably justified in a free and democratic society-

No one should have to live under the constant threat that, at any moment, for an unconventional form of expression that poses no risk to society, s/he may suffer such treatment. But that is the threat that exists in section 153(1)(xlvii). It is a threat particularly aimed at persons of the LGBTI community. The section is easily utilised as a convenient tool to justify the harassment of such persons. Such harassment encourages the humiliation; hate crimes, and other forms of violence persons of the LGBTI community experience. This is at complete variance with the aspirations and values laid out in the Guyana Constitution…

This latter issue implicates the criminalization of the wearing of any form of camouflage clothing in Barbados. This has not been challenged to my best knowledge, but it would be of interest to debate whether it is reasonably required in all cases in the public interest.

Next week- The rule of law and the magisterial reproof.

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

Posted on November 11, 2018 by David

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“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.

Will the “Island of Heroes” Deliver an “Heroic” vote for the CCJ on 6 th November?

Posted on October 13, 2018 by David

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Submitted by DAVID A. COMISSIONG, Attorney-at-Law and Son of the Caribbean Community

A national Referendum on the issue of whether a Caribbean nation should disengage from the British Privy Council and accede to the Caribbean Court of Justice (CCJ) as the nation’s highest appellate Court is more than just a vote about a court of law! Rather, it is a vote that presents the national population with an opportunity to assert their inherent human right to self-determination and personal dignity, and to make a major advance in their historical journey towards the interlinked goals of full national sovereignty and Caribbean civilizational independence.

It is with this understanding in mind that I therefore look forward with great anticipation to see how the people of Grenada – the citizens of my late father’s native land – will vote in the 6 November 2018 Referendum on the CCJ.

Grenada, for me, has always been an “island of heroes”! Aside from the fact that my late Grenadian father – Rev. Vivian Comissiong – is one of my own personal heroes, I am of the view that, for its size, Grenada has produced more heroic historical figures than perhaps any other nation in the world – heroes that have valiantly resisted European imposed enslavement and colonial domination as they sought to bring their people into a promised land of full autonomy and self-determination.

It is this struggle/journey that the Grenadian people should have at the back of their minds when they make their way to the various polling stations on 6 November.

Spare a thought for the original owners of the island of Grenada – the Carib or Kalinago people – who were so determined to resist the European colonisers and to maintain their autonomous nationhood that in 1651 (at Sauteurs in the north of the island) they chose death rather than to live in a state of European imposed servitude and national dishonour.

Recall that as early as 1765 our enslaved African ancestors – faced with the onslaught of an influx of rapacious British slave plantation owners who had descended upon Grenada – revolted against the British plantocratic regime and tried their best to escape the jurisdiction of the British slave plantation by setting up their own maroon communities.

Reflect on the tremendous example of the so-called “free-coloured” revolutionary leader, Julien Fedon, and his lieutenants – Stanislaus Besson, Etienne Ventour and Joachin Phillip – who, in the 1790’s fought the British colonisers to a standstill and almost succeeded in destroying the British colonial and slavery regime.

And then contemplate the fact that from the very beginning of the 20^th century a succession of heroic Grenadians have been in the vanguard of the Caribbean struggle to extricate our region from the tentacles of British colonisation and to establish not only an independent Grenadian nation, but also an autonomous, integrated Caribbean Civilization.

This latter period of Grenadian nationalist struggle encompasses the turn-of-the century activism of the great black patriotic newspaper editor William Galway Donovan; the decades long Pan-Caribbean political, journalistic, and industrial activism and institution building of Theophilus A. Marryshow; Eric Gairy’s 1950’s radical, grassroots mobilization of the Grenadian peasantry and working class against the British colonial authorities and the social elite of Grenada; and – of course – the mighty “Grenada Revolution” of 1979 to 1983 and the efforts of Maurice Bishop, Unison Whiteman, Jacqueline Creft and others to demonstrate that Grenada would never be content to remain in anybody’s colonialist backyard.

The Caribbean Court of Justice (CCJ) that the Grenadian people will be voting for (or against) on 6 November 2018 is our very own Grenadian and Caribbean institution and is part of a structure of freedom and nationhood that we Caribbean people started to build for ourselves way back during the early struggles of our indigenous and African ancestors.

The CCJ is the outgrowth of a centuries long process, but its more contemporary roots are to be found in our 1965 establishment of a Caribbean Free Trade Area (CARIFTA); our 1973 transformation of CARIFTA into the more developed Caribbean Community (CARICOM); our 1981 establishment of the Organisation of Eastern Caribbean States (OECS); and the goals that we set for ourselves in 1989 with our Grand Anse Declaration and its aspirations towards a Caribbean Single Market and Economy (CSME).

As we set about building for ourselves a regional nation or civilization it became clear that a natural and necessary component of that process must be that we take ownership of our entire national judicial system, inclusive of our highest national Court of Appeal.

And so, in 2001, Grenada joined together with nine other CARICOM nations – Antigua and Barbuda, Barbados, Belize, Guyana, Jamaica, St. Kitts and Nevis, St. Lucia, Suriname, and Trinidad and Tobago – to sign the Agreement Establishing the Caribbean Court of Justice (CCJ) as both an “international court” vested with jurisdiction in respect of the interpretation and application of our Revised Treaty of Chaguaramas, and as the highest “municipal or national” Court of Appeal for our CARICOM region.

Grenada also acted with great vision and a sense of responsibility by contributing its portion of the US$100 Million trust fund that our CARICOM states established to finance our CCJ on a permanent and secure basis, and by playing a role in establishing our independent and well-structured Regional Judicial and Legal Services Commission to oversee the running of our CCJ.

But in spite of the highly commendable role that Grenada played in constructing and investing in the CCJ, Grenada has– up to today– only ever utilized the CCJ in its original “international court” jurisdiction, but never in its “municipal or national” jurisdiction as Grenada’s highest Court of Appeal. That honour and critical function has –up to today– been reserved for the foreign-based British Privy Council !

The CCJ was inaugurated on 16 August 2005 in Port-of-Spain, Trinidad and Tobago, and has therefore been in operation for some thirteen and a half years now. And during that extensive period of time it has served all of our CARICOM nations as our “international court” vested with jurisdiction in respect of the interpretation and application of our Revised Treaty of Chaguaramas, and as the highest municipal or national Court of Appeal — but only for the nations of Barbados, Guyana, Belize and Dominica.

Needless-to-say, over the thirteen and a half years of its existence our CCJ has performed excellently well in its role as a final Court of Appeal, and, along with the University of the West Indies, has proven to be an institution of our Caribbean Community of which we can be justly proud – an institution of our Caribbean Civilization that does justice to our fore-parents’ historic struggle for dignity, self respect, autonomy and nationhood.

Why then should Grenada or any other Caribbean country for that matter have any reservations about extricating itself from the inherently “colonialist” situation of having a foreign, European court that is located thousands of miles away from the Caribbean as its highest supposedly “national” Court of Appeal ?

If we reject the CCJ – one of our greatest indigenous Caribbean constructions – we are in danger of rejecting both ourselves and our ancestors and their heroic struggles.

A Vote to Fulfill Antigua and Barbuda’s National Destiny

Posted on August 24, 2018 by David

Submitted by Caricom Ambassador DAVID COMISSIONG, Citizen of the Caribbean

WHEN THE CITIZENS of Antigua and Barbuda go to the polls on 6th November 2018 to vote in a referendum to determine whether they will permit their nation to remain under the judicial jurisdiction of the British Privy Council or whether they will embrace a judicial jurisdiction that is exclusively Antiguan/Barbudan and Caribbean, I hope that they make a choice that takes both Antigua and Barbuda and the Caribbean Community in the direction of fulfilling their historical journeys towards the goals of full national sovereignty and civilizational independence.

This is my fervent hope – and it is a hope based on an understanding of just how long and deeply rooted those journeys to national sovereignty and civilizational independence are, and how much blood, sweat, tears, struggle and hope have been invested in those journeys!

You see, if we are to fully appreciate the rootedness and sacredness of the Antiguan and Barbudan struggle for national sovereignty, we have to go way back to the middle of the 17^th Century and to the heroic efforts of our enslaved African ancestors to escape the jurisdiction of the British slave plantations of Antigua and to establish free maroon-type communities in the primeval woods of the Shekerley range with its imposing Boggy Peak.

We would also need to recall that so determined were the British slave masters to reassert their plantocratic jurisdiction that most of those early Antiguan freedom fighters were brutally hunted down and executed! But, tellingly, this did not deter those heroic Antiguan ancestors from joining a growing tide of regional slave rebellions and developing even more advanced aspirations for the achievement of a free independent and sovereign black nation.

In fact, the year of destiny for Antigua was 1736! By that time, fellow enslaved Africans in such neighbouring British colonies as Barbados, St. Kitts and Jamaica had already demonstrated through slave plots, rebellions and maroon resistance that they intended to achieve black freedom and sovereignty. Furthermore, in the Danish colony of St. John – a mere 200 miles from Antigua – fellow enslaved Africans had risen up in 1733 and taken control of the entire island.

It was against this background that, in October of 1736, the British plantocracy of Antigua discovered – to their great consternation – that the leaders of the enslaved African people of Antigua had developed a master-plan to destroy the system of slavery; to take control of the island; and to establish an independent sovereign Asante-type kingdom. This, of course, was the famous King Court rebellion of 1736.

Tragically, the revolutionary plan was discovered by the British plantocratic authorities; the rebellion was crushed; and such heroes of Antigua and Barbuda as King Court (Tacky), Tomboy, Scipio, Hercules, Ned, Fortune and Secundi were brutally executed and made into national martyrs.

However, it is one thing to kill revolutionary leaders, but it is another thing altogether to kill revolutionary ideas of freedom, nationhood and sovereignty.

Needless to say, those aspirations towards freedom and nationhood remained very much alive among the black people of Antigua, Barbuda, Barbados, Jamaica, St. Kitts and all the other European colonies of the Caribbean, and, some two hundred years later – in the year 1945 – coalesced in the demands of Vere Bird and the other leaders of the Caribbean Labour Congress (CLC) for the transformation of the socially and racially oppressive West Indian colonies of the day into democratic, socially and economically just self-governing nations within the over-arching structure of a West Indian Federation.

Without a doubt, the most potent formulation of these historic demands took place at the founding conference of the CLC in Barbados between the 17^th and 27^th of September 1945. Antigua was represented not only by Vere Bird, but also by Harold T. Wilson and J. Oliver Davis. Also in attendance were such political giants as Richard Hart (Jamaica), George McIntosh (St. Vincent), Grantley Adams, Hugh Springer and Frank Walcott (Barbados), T. A. Marryshow (Grenada), Hurbert Crichlow and A. A. Thorne (Guyana), Albert Gomes (Trinidad and Tobago) and W. J. Lesperan (Suriname).

And when these historic demands were ultimately betrayed and subverted– largely through the combined duplicity of the British Colonial Office and the folly of Alexander Bustamante — culminating in the 1962 collapse of the West Indian Federation, it was the veteran leader, Vere Bird, who joined forces with the younger Errol Barrow of Barbados and Forbes Burnham of Guyana to retrieve the vision and re-engineer our people’s historic journey to full nationhood and sovereignty with the signing of the Caribbean Free Trade Association Agreement (CARIFTA) at Dickenson Bay, Antigua, on 15^th December 1965.

CARIFTA was formally launched on 1^st May 1968 – making this year of 2018 the 50^th anniversary year of CARIFTA – and by 1973 had evolved into the more comprehensive and substantial Caribbean Community (CARICOM).

And it is CARICOM which – through functional co-operation – has supported and maintained such critical edifices of our national sovereignty and civilizational independence as the University of the West Indies and the Caribbean Development Bank, and that has established the Caribbean Court of Justice (CCJ).

Of the three visionary architect nations of CARIFTA, two have removed themselves from the judicial jurisdiction of the British Privy Council and have established the CCJ as their highest and final appellate court – Barbados and Guyana. But what of Antigua? How will Antigua decide?

Perhaps this 50^th anniversary year of the effective launching of CARIFTA is symbolically and spititually the right time for the people of Antigua and Barbuda to – in this most tangible and meaningful of ways – reiterate their commitment to the completion of our people’s historic journey towards full national sovereignty and Caribbean civilizational independence.

I humbly ask the people of Antigua and Barbuda to reflect deeply on the sacrifices made by the King Courts and Tomboys of sacred memory, and on the outstanding lessons of self-respect and self-determination taught to us all by such outstanding Antiguan and Barbudan sons and daughters of our Caribbean Civilization as George Weston, Vere Bird, Tim Hector, Sir Vivian Richards, Jamaica Kincaid, Sir Andy Roberts, King Shortshirt, Paget Henry and so many others before casting their vote on the 6^th of November.

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Tag Archives: CCJ

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A Vote to Fulfill Antigua and Barbuda’s National Destiny

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Submitted by DAVID A. COMISSIONG, Attorney-at-Law and Son of the Caribbean Community

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