The Background
Let me
begin by placing a disclaimer of sorts on the record. It is not permissible under the Code of
Ethics adopted by the judiciary of the Eastern Caribbean Supreme Court[1]
for a serving judge to make comments on matters of great public interest if to
do so would cast reasonable doubt on his ability to decide impartially on any
matter that may come before him in court.
I am only free to address you today on the topics you have chosen for
me, and to express the opinions I do, because I am no longer a serving judge of
the court. I have sat as a judge for the
last time, and am now on leave prior to going into retirement. I speak to you, then, as one who is about to
become a private citizen, and who no will longer sit as a serving judge.
It
is as well to remind ourselves of the background to this discussion.[2]
The Treaty
of Chaguaramas
The
Caribbean Community was established by the Treaty of Chaguaramas, 1973.[3] Caricom presently consists of 15 countries
and territories.
Antigua and
Barbuda
The Bahamas
Barbados (1973)
Belize
Dominica
Grenada
Guyana (1973)
Haiti (2002)
Jamaica (1973)
Montserrat
St Kitts and
Nevis
St Lucia
St Vincent and
the Grenadines
Suriname (1995)
Trinidad and
Tobago (1973)
The
absences from the list of full members are immediately obvious. There are several Associate Members, but they
are not full members. They are:
The TCI (1991)
The BVI (1991)
Anguilla (1999)
The Cayman Islands (2002)
Bermuda (2003)
They are
all British Overseas Territories. They
are all small but not insignificant members of the Caribbean region. Cayman is the 5th largest banking center in
the world. Anguilla banks 2/3 of all
foreign currency in circulation in the OECS.
Bermuda is one of the largest re-insurance and offshore financial
centers in the world. The BVI holds the
largest Register of Companies in the world, and is recognized as a leading
international financial center. These
five British Overseas Territories are important international and regional
financial centers. Besides, even if they
were not, they are integral members of what Dr Gonsalves likes to call “our
West Indian Civilization.” Caricom will
be a poorer place, and not just financially, without their full presence and
participation in a future West Indian country.
Their exclusion from Caricom while they lie in close proximity to full
members, will provide opportunities for loopholes for doing mischief of one
kind or another that will only serve to frustrate the integration efforts of
our leaders.
So,
what is Caricom? In brief, the principal
organs of Caricom[4] are
twofold: (a) The Conference of Heads of
Government, and (b) the Community Council of Ministers. The Conference is the supreme organ of the
Community. It consists of the heads of
government of all member States. It
determines and provides the policy directions for the Community. It concludes treaties on behalf of the
Community and makes financial arrangements to meet the expenses of the
Community. Its decisions are generally
taken unanimously. The Council consists
of Ministers responsible for Community affairs.
It develops Community strategic planning and coordination in the areas
of economic integration, functional cooperation, and external relations.
There
are 3 principal further bodies of the Community:
(i) The Legal Affairs Committee provides the
organs of Caricom with advice on treaties, international legal issues,
harmonization of laws, and other legal matters;
(ii) The Budget Committee examines the draft
budget and work programme prepared by the Secretariat and submits recommendations
to the Council;
(iii) The Committee of Central Bank Governors
makes recommendations on matters relating to monetary cooperation, payment
arrangements, free movement of capital, integration of capital markets,
monetary union, and other related matters.
Additionally,
there are some 20 Community Institutions, most of which are well known to
us. They include such bodies as CEDERA
and CARDI. Ranking just below them are
some 5 Associate Institutions of the Community.
These include the CDB and the Secretariat of the OECS.
All
of the member States and territories of Caricom are characterized by smallness
and vulnerability. Each, taken on its
own, possesses a relatively small labour force, a tiny consumer population, and
very limited resources. The result is
that we are vulnerable to forces as diverse as economic shock and natural
disaster. We have achieved little in the
past 25 years in any field that propels development; in none of economics, law, entrepreneurship,
or science. We offer our people limited
opportunities for growth. We experience
continued high rates of out-migration, unemployment, social restlessness,
corruption, crime, drugs-trafficking, and other evidence of lack of social
cohesion. The present post-colonial
regime we have inherited poses unnecessary obstacles to the natural development
of our markets and business activity, upon which the well-being and progress of
our people depend. Our economies face
being overwhelmed in the new atmosphere of globalization and liberalization,
driven by multinational conglomerates that dominate global commerce.[5] The globalization train is gathering
speed. The choice is clear. Either we are going to wave the train
goodbye, or we are going to try to get on it.[6]
There
have been other significant developments since 1973, the year Caricom was
founded. Gone are many of the state
enterprises and our past over-dependence on the protection of infant
industries, many of which were trade-restrictive and inefficient. We have continued until recently to depend on
rigid economic structures based on preferences.
This status, these preferred relationships, no longer exist. Gone too is the dependence on import licences
and rigid exchange control regimes designed to steer trade and manage
economies.
So,
change is inevitable. The enterprise of
integration is forced upon us. While
timing is important, it is not always our own choice. The problem is to ensure that the people
benefit from change. There will always
be the inevitable resistance to change.
Will we respond by continuing each to try to go it alone? Or, will we learn to cooperate using and
enjoying common rights, common law, and common rules in a regional economy? Can we so integrate our markets as to give
our entrepreneurs access to resources, common economic and foreign policies,
and common institutions? Can our
disparate countries come together to achieve the community, political and
social cohesion so vital for progress?
The
Revised Treaty of Chaguaramas
In
response to the above challenges, our leaders have decided on a global
strategy. They have adopted a new world
view of our development into the 21st Century. It involves deepening economic integration,
widening the economic mass of our Caribbean Community, and learning to
negotiate together to participate in other regional and multinational
rule-based frameworks. They have called
on us to enter into the Caricom Single Market and Economy. This regional economy and market will consist
of some 15 million consumers spread over 2,000 miles. When bilateral agreements are added, the
consumer population increases to over 75 million persons.[7] The combined GDP of this single market
exceeds US$25 billion. The opportunities
for growth and prosperity for all of our people is obvious. The possibility is evident for widening and
deepening the buffer against external shock.
The
CSME derives from the Grand Anse Declaration of 1989. Between 1989 and 1992, the original treaty
had been amended by 9 Protocols, each of which addressed a specific area of
concern. These included:
Free
Movement of Goods
Free
Movement of Services
Free
Movement of Capital
Rights
of Establishment
Supporting
and Facilitating Measures and Policies
Private
Sector Participation
External
Interface
The
contents of the Protocols were incorporated in the year 2001 into the Revised
Treaty of Chaguaramas.[8] The Revised Treaty has been in effect since
February 2002. The Treaty is
supplemented by various inter-governmental agreements, implementing laws,
regulations, orders and rules; and a dispute settlement regime providing for
enforcement both under domestic law and under the Caribbean Court of
Justice. The Revised Treaty imposes an
obligation on each member State to enact the Revised Treaty into national
law. As of March 2004, only Barbados,
Belize, Suriname and St Vincent and the Grenadines had done so. All other member states have yet to enact the
Revised Treaty into domestic law. We
have only six months left to do this, and until then we cannot claim to have a
fully integrated Caricom economy.
The
CSME will be a Rule-based entity, an economic space, a regional economy, a
market system, an integral part of Caricom.
The key principles underpinning the CSME will be equal rights and
treatment in the market for all persons of member States. The final product will see freedom for all
our people to create, establish and operate companies and legal entities in any
part of the market. We will enjoy
freedom to travel anywhere in the community, benefiting from national treatment
at ports of entry, and using machine-readable travel documents, including a
common Community passport.
In
addition to the Treaty, and inter-governmental agreements, a large part of our
domestic law must be amended to give effect to the vision of the CSME. These include company laws, laws regulating
access to land and other property, partnerships, monopolies, origin criteria,
enforcement of judgments, movement of persons across borders; travel and
landing documents, and national treatment at ports of entry. Laws that will be affected include those
regulating export drawback, tariffs, and internal taxes and charges. Prohibited will be import duties,
quantitative restrictions, government assistance to economic development,
public undertakings, and export subsidies.
With minor exceptions, a government can be sued if it gives subsidies
that are injurious to free trade. The aim and objective is market
liberalization by ensuring free movement of persons, trade, goods and
services. The Treaty provides that all
existing restrictions in law must be removed by 31 December 2005.
Our
governments have committed to removing prohibited restrictions and preferences
from our laws over the period 2003-2005.
A table of the laws that contain prohibited restrictions and of the
promised schedule for amending the legislation to remove them may be made as
follows:
Country
|
All Restrictions
|
2003
|
2004
|
2005
|
Antigua
|
15
|
5
|
7
|
3
|
Barbados
|
34
|
31
|
-
|
3
|
Belize
|
31
|
7
|
3
|
21
|
Dominica
|
27
|
21
|
1
|
5
|
Grenada
|
21
|
5
|
1
|
15
|
Guyana
|
43
|
5
|
8
|
30
|
Jamaica
|
69
|
28
|
26
|
9
|
Montserrat
|
||||
St Kitts-Nevis
|
6
|
2
|
4
|
|
St Lucia
|
44
|
21
|
13
|
10
|
St Vincent
|
12
|
5
|
5
|
2
|
Suriname
|
35
|
8
|
1
|
24
|
Trinidad
|
10
|
2
|
4
|
4
|
TOTAL
|
349
|
140
|
69
|
130
|
A detailed
analysis of each of the restrictive laws in each of the States and territories,
and the status of the necessary amending legislation in each country, is to be
found at the Caricom website.[9]
THE
CARIBBEAN COURT OF JUSTICE
As the
Acting Chief Justice of the OECS, Adrian Saunders JA, said at a recent
workshop, it is not productive to rehash the philosophical arguments for or
against the CCJ[10]. We have gone past that phase in the
debate. It is only a matter of time
before the court is established in law in all of our countries. The Caribbean Court of Justice is one of the
most important institutions of the Community and Single Market. While the appellate jurisdiction of the court
is of vital importance to all of us, it is absolutely critical to have the CCJ
as a court of original jurisdiction. By
the Treaty,[11] it is
the tribunal which will adjudicate on commercial matters that arise out of the
operation of the single market. As of
the latest edition of the Caricom web site all member States except the Bahamas
and Montserrat have signed the Agreement.[12] Of those that have signed, only Antigua and
Barbuda are yet to deposit the Instrument of Ratification. On the other hand, only Barbados and Suriname
have enacted national legislation giving effect to the Agreement.[13] The member States are falling behind in their
commitment, and it is now difficult to see how the deadline for full accession
to the court can be met.
There
is one major threat to the future development of our Caribbean jurisprudence
through the CCJ that, in my view, is not being adequately addressed. That is the reluctance of the British
government to permit the five overseas territories of Bermuda, Turks &
Caicos Islands, Cayman Islands, British Virgin Islands, Anguilla, and
Montserrat to join the court as full members.
Other than Montserrat, the five BOTs have not been permitted to join
Caricom, and the CSME, far less the CCJ.
The
rationale of the British is clear enough.
Simply put, it is that Britain remains contingently liable for the
governance of her overseas territories.
To take a not too far-fetched example, if the homophobia so prevalent in
our societies was to result in a homosexual being discriminated against in one
of the territories, and if the final Caribbean Court of Justice did not provide
a remedy for the wrong done to him or her, then Britain is liable to be sued in
the European Court of Justice for its breach of the European Human Rights
Convention protection of all persons from discrimination on the basis of their
sexuality, for having failed adequately to provide the necessary
protection. Britain may have to pay out
money to cover any harm done by the government of one of its overseas
territories, where such harm is not adequately compensated by the local
courts. The British feel an understandable
need to be concerned to ensure the full protection of the law to the citizens
and residents of its overseas territories.
It has, therefore, concluded that it must not permit the Caribbean Court
of Justice to be final in relation to the British Overseas Territories. Britain has so far declined to permit those
of their territories who have expressed a desire to remain within the legal
system of the Caribbean family of nations by acceding to the Agreement setting
up the Caribbean Court of Justice.
The
flaw in the argument is immediately obvious.
No country’s final court of justice is truly final. As an example, St Vincent and the Grenadines
is an independent country, and has acceded to the CCJ. But, St Vincent and the Grenadines is also a
signatory to the American Convention on Human Rights.[14] A resident of St Vincent whose human rights
are being infringed in that country always has the right in appropriate
circumstances, before or after exhausting all his remedies in the local courts,
to appeal to the Inter-American Court of Human Rights.[15] This is no imaginary process; dozens of such
appeals have been filed from many Caricom OAS member States. Similarly, there is no insurmountable
obstacle in law to Britain permitting the overseas territories to join Caricom
and the CSME and to adopt the CCJ as its original court in trade matters and
its final court of appeal, subject to the appropriate right of intervention by
either the Privy Council or the European Court of Human Rights where Britain’s
contingent liability is concerned. Our
region risks falling apart with the loss to it of the countries of the
BOTs.
Lack
of knowledge and incentive within the communities of the British Overseas
Territories reduces to a minimum pressure that might be brought on our leaders
from within society to give effect to the widespread dream of our citizens to
be fully integrated in the coming West Indian State. What is needed is vision and states-craft on
the part of our leaders. It is sincerely
to be hoped that before it is too late, our leaders will press for Britain to
permit each of the five BOTS to join Caricom, the CSME, and the CCJ.
CONCLUSION
In
conclusion, let me touch on two problems that are common across our sub-region
of the Windward and Leeward Islands. The
first is lack of information, and the second is corruption.
A
major problem concerning Caricom, the CSME and the CCJ is a lack of information
available to the public in the sub-region I come from. Those who are interested enough to find the
incentive, and have both the time and the means, may ferret out the details of
progress by studying the many helpful documents published on the Caricom
website. However, a perusal of the daily
newspapers[16] of the
Windward and Leeward Islands will show that on any particular day there is
hardly a mention in the press of any of the topics of Caricom, the CSME or the
CCJ. No national political, business or
labour leader in the sub-region appears willing to venture out into the
spotlight with comment or advice, not that it is reported, anyway. It is almost as if our opinion-makers have
unanimously agreed to play down the momentous changes that, with the planned
reforms, are coming to our people’s lives.
One is forgiven for harbouring the suspicion that they have deliberately
chosen to duck the issues in an effort to minimize feared political collateral
damage. Perhaps, the intent is to let
the larger countries of Jamaica, Barbados and Trinidad and Tobago do the
running, and, when the CSME and CCJ have proven themselves to be a success,
then to ride home on the coat-tails of the pioneering work done in the larger
territories. That would be an
understandable, if shortsighted, political dodge. It is not a course of action designed to
maximize the opportunities that are instead being missed by their
communities. We in the lesser developed
nations of the region, due to the lack of our leaders’ foresight, run the risk
not only of missing the train, but of being bumped from the plane, and being
made to walk the ship’s gang-plank.
Let
me finish by touching on one development that has been concerning me for some
time. That is the issue of official
corruption and the obstacles it places to the development of Caricom law and
good governance. Transparency
International’s new Global Corruption Report 2004 adequately describes
the problems that official corruption presents.
The abuse of political power for private gain deprives the most needy of
vital public services, creating a level of despair that breeds conflict and violence.[17] Corruption by governing politicians and
administrators hits the pockets of taxpayers and employers in all our
countries. There is no excuse for the
silence and lack of protest from within our communities. Most of our independent countries have acceded
to the Inter-American Convention against Corruption.[18] The OAS, at its recent 34th Session of the
General Assembly, meeting in Quito, Equador, June 6-8, focused on hemispheric
efforts to combat corruption.[19] It is a major problem through the Americas.
No
less destructive to the potential of the CSME for our economies and of the CCJ
for our jurisprudence is the effect on our societies of the corruption of our
police forces. I cannot speak with any
familiarity for Jamaica, the Bahamas, Barbados or Trinidad and Tobago. I can only speak with some experience about
the Leeward and Windward Islands. When I
was a young magistrate in Anguilla in the 1970s, and then a lawyer in private
practice in the 1980s, I was made aware that US Drug Enforcement Agency
officers out of San Juan and Miami were corruptly concerned in the business of
drugs importation into the United States.
Large shipments of cocaine seized in our islands and sent to them for
safe-keeping invariably disappeared before the cases came to trial. Later, as a lawyer in private practice in the
1990s, I have been consulted on the case of a former Windward Island
Commissioner of Police who had failed to pay a gambling debt of a quarter of a
million US dollars owed by him to a casino in St Maarten.
The
word on the street is that bad cops within our police forces now control and
run the organized prostitution, gambling, and drugs importation and
distribution industries. If there is any
truth in the allegations, it means that in each of our islands, criminal
elements within our police forces are able to bring the power of the State to
bear on developing and protecting their prostitution, cocaine and gambling
empires. These industries are a trio of
cancers eating away at the hearts of our societies. We hear the same thing equally concerning the
British Overseas Territories as we do about the independent ones. It would mean that it is only their
competitors and opponents who are being either arrested and prosecuted, or
their children brutally assaulted and butchered in punishment for some unknown
drugs-trafficking transgression.
These
rumours of corrupt elements within the police forces of the Windward and
Leeward Islands have been circulating within our societies for nearly two
generations, with hardly a word of criticism from the press or the pulpit.[20] We hear these allegations as equally in my
own island of Anguilla as we do in the independent ones of Antigua and St Kitts
in the Leeward Islands, and St Lucia and St Vincent in the Windwards. The suggestion is that the politicians permit
and participate in this activity because they depend on the payments and
kickbacks to finance their election campaigns.
We hear hints that many of the richest entrepreneurs of our societies
have achieved that status through financing these illegal industries. Lawyers are implicated in many of the
stories. They are whispered about at
dinner parties, and in rum-shops, but no one speaks out in public, no
investigation is made.
If
there is any substance to the gossip, the reason for this pervasive silence is
not hard to guess at. Since the 1970s,
the DEA has regularly supplied our police forces with sophisticated
surveillance equipment, ostensibly for use in the war against drugs. This equipment can be more usefully employed
in turning it on the lives of our politicians, businesspersons, clergy,
magistracy and judiciary, and other opinion-makers in our societies. They are the ones that may be perceived as
the real threat. Files on them and their
indiscretions can be kept in police safes in each island, to be brought out and
used at the appropriate moment. Whatever
the explanation, the result has been an almost universal silence in the face of
these long-standing and persistent rumours.
The
concern is that unless the honest elements within our governments and police
forces show a stronger commitment to rooting out such corruption as does exist,
our leaders will ultimately fail in their noble dreams, and our countries risk
descending into a Haiti-like condition.
If there is any substance to this widely held belief about the extent of
corruption, then the best intention of our leaders to improve the economic and
social status of our people through the opportunities provided by the CSME
risks being defeated. If this scourge is
as widespread and endemic as one hears, then we as a people have to find the
courage to speak out in protest, otherwise all of our hopes and aspirations for
the improvement of the lives of our children and grandchildren are likely to be
doomed to failure.
A speech to the participants at the 11th
meeting of the Caribbean Association of Law Librarians in Nassau, Bahamas on 10
July, 2004.
[1] Code of Conduct for Eastern Caribbean
Supreme Court Judges, Canon 1.
[2] Ivor Carryl, Programme Manager CSME, Power
Point presentation of May 2004, from which much of the following history is
taken verbatim.
[3] Treaty Establishing the Caribbean
Community, Chaguaramas, 14 July 1973: For the text see the Caricom website:
www.caricom.org
[4] See the page on the Caricom website Structure
of the Community at: www.caricom.org
[5] According to a UNCTAD Investment Report of
1993 there were then 37,000 multinational enterprises in the world with 170,000
foreign affiliates. The top 1% of all
multinationals accounted for nearly ½ of all the world’s direct investment.
[6] HE Lorne T McDonnough, Jamaican High
Commissioner to the Republic of Trinidad and Tobago, speech to the Rotary Club
of Port-of-Spain on 13 May 2003.
[7] In December 2001, Caricom concluded its
first free trade agreement with the entry into force of the Caricom/Dominican
Republic Free Trade Agreement. A more recent one is the Caricom/Costa
Rica Free Trade Agreement, signed on 9 March 2004.
[8] See the text at the Caricom website: www.caricom.org
[9] Programmes for Removal of Restrictions:
www.caricom.org
[10] Saunders JA: Strengths and Weaknesses of a
Regional Appellate Court and Recommendations for Enhancing such Court’s
Effectiveness, paper presented at a workshop to discuss the proposed court.
[11] The Agreement Establishing the Caribbean
Court of Justice, signed at Barbados on 14 February, 2001.
[12] Establishment of the Caricom Single Market
and Economy – Key Elements (Updated 14 April 2004): www.caricom.org
[13] All information taken from the website www.caricom.org
[14] OAS Treaty Series No 36, entered into force
on 18 July 1978
[15] Established by the Statute of the
Inter-American Court of Human Rights, OAS Res 448
[16] Most of which are electronically available at
the very useful website: www.caribbeannewspapers.com
[17] The details may be read at: www.transparency.org
[18] Adopted at the 3rd Plenary
Session, 29 March 1996. The text is
available at the OAS website: www.oas.org
[19] See the press-release page on the
Transparency International website www.transparency.org
[20] One notable exception is the courageous
coverage of police and government corruption given by the Star Newspaper of St
Lucia. See almost any issue of the paper
at: www.stluciastar.com
