The Private Sector, CSME and the CCJ’s Original Jurisdiction
The Caribbean Court of Justice (CCJ) was inaugurated on April 16, 2005 and has two jurisdictions. One is its appellate jurisdiction, with which we may be more familiar. It hears appeals from lower courts in both civil and criminal matters from states which have replaced the Privy Council by the CCJ and is the highest municipal court in the region. According to a “must read”article about this jurisdiction by Acting President Justice Rolston Nelson in the Chamber’s Contact magazine, volume 3 of 2011, His Lordship reminds all states which have not embarked upon the replacement process, that the 2001 agreement establishing the CCJ, also includes one by all member states to replace the Privy Council with the CCJ as their final courts of appeal. Trinidad and Tobago ratified this agreement on October 18, 2002, so that the continual vacillation by our Government, using the excuse of the need for a referendum or Constitution reform or whatever, appears to the Chamber to be nothing but hot air, since the signature of this agreement makes it an international one. International law does not allow a state to plead provisions of its own law or deficiencies in that law, in answer to a claim against it for an alleged breach of its obligation under international law.
Today, the Chamber examines the other jurisdiction of the CCJ, its original jurisdiction as an international court and the only one with the authority to interpret the Revised Treaty of Chaguaramas, establishing the Caribbean Community, including the CSME, and to settle disputes arising out of its operation.
Our examination results from opening remarks recently made by the very Justice Nelson to stakeholders, including the Chamber, at a seminar to familiarise them with the both jurisdictions of the CCJ.
His Lordship, inter alia, expressed the view that the local private sector had not bought into the CSME, a regime which gives Caribbean peoples a choice of economies. He stressed that the private sector has to refashion the economy to enable such people to compete and survive in the modern world and pointed out that the CCJ exists to protect the rights and freedoms of, not only Member States, but, in one of its recent judgments, their citizens, under the CSME, to make one market of the entire Caribbean instead of every “man” for himself.
Justice Nelson may be spot on, when the Chamber ponders that the Revised Treaty of Chaguaramas was signed since July 2001 and the Agreement to establish the CCJ since February, 2001. However, the private sector, by itself, is not solely culpable for the slow pace of unification. CARICOM Chairman, Dr. Denzil Douglas, during the 32nd CARICOM Summit in St. Kitts last July, had this to say about the slow pace towards realising the CSME. “We’ve decided to put on hold, for the moment, realisationof the Economy aspect and let us get right to issuespertaining to attainment of the Single Market aspect and their advance to the Economy segment.”
Let us therefore examine the opportunities for the private sector in CARICOM Member States and, lately, individuals, in the exercise by the CCJ, of its powers in its original jurisdiction while the business communities therein continue to spur on the respective governments to make the CSME happen.
The judgments of the CCJ in the cases brought by Trinidad Cement Limited against the Caribbean Community, and by TCL and a Guyanese subsidiary, against the State of Guyana, have clearly identified who can sue when and for what. It held that both private entities and individuals may call Member States of CARICOM to account before the Courtfor breaches of their treaty obligations under the Revised Treaty subject to the conditions for leave to do so imposed by Article 222, being satisfied. It also held that a company which we either incorporated or registered in a Member State was, for the purposes of the same Article to be regarded as a person of that State, regardless of whether or not the ownership or control of the company, was in the hands of non-nationals. It also clarified that a person or company with leave under the same Article could sue the State to which it, he or she belonged. The TCL case also clarified the process for suspension of the CET and forced the CARICOM Secretariat to put in place written procedures for suspensions.
The nature of the goods in that case, was cement and, the breach, was the suspension of the Common External Tariff (CET) by the Government of Guyana but tomorrow it might be beverages from Trinidad and Tobago unfairly prevented from entry to the markets of member States or some similar scenario. Since the TCL case there have been other instances where private sector entities have taken member states before the CCJ. Article 7 of the Revised Treaty prohibits discrimination on grounds of nationality only. Red Jet and the Member States which drag their feet or refuse it landing rights or whatever may be the next claimant or LIAT against Caribbean Airlines for unfair competition because of fuel subsidies it enjoys from our Government.
The CCJ ‘s judgment in Johnson vs CARICAD clarified that only Member States or the Caribbean Community may be sued, but not for the actions or decisions of Institutions and Associate Intuitions, which CARICAD is. Thus, in the Chamber’s opinion, this widens the target, at which claimants may take aim, in search of remedies for breaches of the Revised Treaty.
The judgment also clarified the types of complaints which are justiciable in the CCJ. It ruled that Ms. Johnson could not procure relief for wrongful dismissal, breach of contract and of the laws of Barbados, but could do so in respect of discrimination on the grounds of nationality only. Do not therefore be surprised if Guyanese nationals who complain of discriminatory treatment by immigration officers at Sir Grantley Adams Airport in Barbados also make their way to the CCJ for remedial action, and, even damages invoking the protection of Article 7 of the Revised Treaty.
As the Chamber recalls the views expressed by Justice Nelson, let us in the business community remind ourselves and our leaders that Article 9 of the Revised Treaty is a general undertaking by Member States that they shall take all appropriate measures, whether general or particular, to ensure the carrying out of obligations arising out of this Treaty or resulting from decisions taken by the Organs and Bodies of the Community. They shall facilitate the achievement of the objectives of the Community. They shall abstain from any measures which could jeopardise the attainment of the objectives of this Treaty.
The 50th year of our Independence is as good a time as any to keep the written word!
