…but AG concerned at coercive CCJ order
Attorney General Charles Ramson said yesterday that Guyana will reinstate the Common External Tariff (CET) on cement as ordered on Thursday by the Caribbean Court of Justice (CCJ), but he likened the court’s coercive order to “an act of sovereignty” saying that it borders on the kind of action that only nation states take against other nation states.
The CCJ ruled that Guyana restore the tariff within 28 days, stating that without the coercive order there would be grave consequences for the rule of law in the single market- a directive which Ramson said suggests that the court has now assumed powers akin to that of sovereign states.
The AG pronounced on the judgment of the court at a press conference yesterday. He declared that Guyana “is prepared to obey the order of the court”, but expressed surprise that the sitting CCJ judges made a mandatory order as opposed to a declaratory one.
“…it appears this judicial order is akin to an act of sovereignty, one only has to reflect and consider whether the judicial committee of the (UK) Privy Council would have made an order of that kind. I doubt it.” Ramson stated.
Ramson observed that declaratory orders made by any court are treated as mandatory by local laws. He said too courts like any other body empowered to do things have limited powers, adding that “they don’t have untrammelled powers”.
Guyana’s Foreign Minister, Carolyn Rodrigues has been consulted and is expected to take the necessary steps after consultation with Cabinet to have the CET reinstated, according to the AG. He disclosed that Guyana will also pay the costs incurred by the cement companies which filed the CCJ action, in keeping with the order of the court.
But on the issue of costs Ramson SC, a former Court of Appeal judge, gave his personal opinion saying, “if that case was before me, I would not have awarded costs against the party who was supposed to be the wrongdoer [and] it turns out that the wrongdoer does not have to pay any compensation “.
And in responding to a finding by the CCJ that Guyana’s breach of the Revised Treaty of Chaguaramas (RTC) has implications for the rule of law in the single market, Ramson said there is no evidence to support a complete breakdown of law and order.
He said that the rules set out in RTC articulate a regime that would lend some level of consistency, noting that while every member state is required to observe treaty provisions, “I do not believe that this particular act by Guyana could be regarded as a violation of the rule of law generally”.
He declared that while government is bound by both the Constitution and the RTC, the Constitution is the supreme law of the land.
The AG emphasized that Guyana stood to lose close to US$3M if the court had awarded damages to Trinidad Cement Limited (TCL) and TCL Guyana Incorporated (TGI). TCL had subsequently dropped its demand and the CCJ threw out the claim by TGI.
“TCL claimed in the region of US$3M in damages and they haven’t got a penny”, Ramson stated while noting that he is satisfied that the government did not act in “a wrong and strong manner”.
He said that Guyana did breach the RTC, but argued yesterday that the decision was taken to protect the country’s economic interests as well as the businesses that assist with macroeconomic development. Ramson insisted that it was critical that measures were implemented to protect the national interest as set out “under the constitution of Guyana”. The court had found that the nature of the breach by Guyana warranted damages if the case could be proven.
Ramson cited Article 15 of the Constitution which he says speaks to goals of economic development and includes various objectives; specifically he noted that it points to state intervention to mitigate any deleterious effect of competition on individuals or groups of individuals. According to him, Article 16 supports what is set out in Articles 14 and 15.
“I helped draft the rules of court”
Ramson observed that the two Guyanese CCJ judges did not sit in the tariff hearing against Guyana, but he noted that two Trinidadian judges were on the panel “even though there was provision in the agreement establishing CCJ in Article 11 for a panel of three or even one to hear a case in its original jurisdiction”.
The AG stated that the one judge could have heard the case involving Guyana because the rules make the necessary provisions.
“… one judge could have sat, I assisted in drafting the rules and the agreement for establishment of that court, I was AG (prior to the resignation of Doodnauth Singh SC) at the time”, he stressed.
He recalled that Justice Duke Pollard was also part of the team consulted when the rules of the court for hearings in its “original jurisdiction” were being formulated.
Difficulty
Ramson spoke of his disappointment with “media reports” prior to the release of the court judgment. He said that the reports did not demonstrate any confidence in the work his chambers undertook “to secure the interests of the public”.
But he quickly shifted focus to the difficulty he encountered in persuading senior counsel here to present Guyana’s case before the CCJ.
“I had grave difficulty in persuading them to undertake this very simple task of representing the country, they were reluctant to present our case. So much for our senior counsel”, he added.
Ruling
The CCJ ordered Guyana to re-impose the regional tariff on cement within 28 days saying that without a coercive order there would be grave consequences for the rule of law in the single market but it threw out a claim for damages after ruling that TGI had not proven its case.
The court declared that Guyana has been in breach of the provisions of Article 82 of the RTC by failing to implement and maintain the CET on cement since October 2006. It further ordered that Guyana maintain the CET without prejudice to its right to seek a waiver in the established manner.
The companies had challenged Guyana’s suspension of the CET, which decision was contained in a letter from the Minister of Finance to the Commissioner General of the GRA.
The suspension had continued from year to year and remains even though Guyana had not made the relevant application to the Caricom Council for Trade and Economic Development. As a consequence cement was imported from non-Caricom sources free of CET and TCL and TGI moved to the court principally seeking a declaration that the RTC had been breached, a mandatory order that the CET be restored and damages.
