RECENT DEVELOPMENTS IN CARICOM LAW – A SPEECH BY DON MITCHELL QC, to CARALL XIX, Bahamas, July 2004
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 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.
THE TREATY OF CHAGUARAMAS
The Caribbean Community was established by the Treaty of Chaguaramas, 1973. Caricom presently consists of 15 countries and territories.
Antigua and Barbuda
St Kitts and Nevis
St Vincent and the Grenadines
Trinidad and Tobago (1973)
The absences from the list are immediately obvious: the TCI (1991), the BVI (1991), Anguilla (1999), the Cayman Islands (2002), and finally, Bermuda (2003), are only Associate Members, not full members. 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 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. 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.
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, 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. 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
The contents of the Protocols were incorporated in the year 2001 into the Revised Treaty of Chaguaramas. 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
St Kitts-Nevis 6 2 4
St Lucia 44 21 13 10
St Vincent 12 5 5 2
Surinam 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 web site.
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. 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, 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. 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. 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. 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. 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.
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 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. 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. 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. 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. 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.
 Code of Conduct for Eastern Caribbean Supreme Court Judges, Canon 1.
 Ivor Carryl, Programme Manager CSME, Power Point presentation of May 2004, from which much of the following history is taken verbatim.
 Treaty Establishing the Caribbean Community, Chaguaramas, 14 July 1973: For the text see the Caricom website: http://www.caricom.org/
 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.
 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.
 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.
 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.
 The Agreement Establishing the Caribbean Court of Justice, signed at Barbados on 14 February, 2001.
 Establishment of the Caricom Single Market and Economy – Key Elements (Updated 14 April 2004): http://www.caricom.org/
 OAS Treaty Series No 36, entered into force on 18 July 1978
 Established by the Statute of the Inter-American Court of Human Rights, OAS Res 448
 Most of which are electronically available at the very useful website: http://www.caribbeannewspapers.com/
 Adopted at the 3rd Plenary Session, 29 March 1996. The text is available at the OAS website: http://www.oas.org/
 See the press-release page on the Transparency International website http://www.transparancy.org/