I read with interest Mr Rickey Singh’s article in the Jamaica Observer of August 30, 2009 concerning the CCJ. Issues surrounding the decisions and the usage of the CCJ have been high on the agenda since the statement made by Lord Nicholas Phillips, UK Chief Justice, to the effect that Privy Council cases from the Caribbean have been creating a financial burden for the British taxpayer and they consume most of the time on the bench. It follows therefore, that were most Caribbean states to disaffiliate from the Privy Council, as urged by Lord Phillips, we must first and foremost be assured that the mechanisms of the CCJ are adequate to accommodate all those cases which would have been sent to the Privy Council, including cases involving human rights issues, eg the right not to be subject to inhuman and degrading treatment, and the right to be free from invidious discrimination.
A state’s human resources are its most important resource. In attempting to move Caricom and the CSME forward individual rights must be considered and protected in light of the several international conventions guaranteeing protections of such rights. Therefore, Caricom structures must be adequate to protect those rights.
I have been advised that the Caribbean Court of Justice is not a human rights court. (Remarks by Chief Justice de la Bastide in Johnson v. CARICAD, AR2 of 2008, December 7, 2008). However, any court of last resort must have as its primary goal the assurance of respect for the rule of law. It must also guarantee protection of rights enshrined in the constitution(s), and ensure that justice is not only done but also seen to be done.
CCJ Rule 1.4(2) (a) provides “Nothing in these Rules shall limit or otherwise affect the inherent powers of the court to make such orders as may be necessary to meet the ends of justice…” Meeting the ends of justice will require the court to decide on human rights issues from time to time. In Johnson v CARICAD the court, by insisting that it is not a human rights court either ignored or deviated from its mandate to make orders as necessary to meet the ends of justice.
The present Caricom structure, although concerned with the free movement of labour and the attendant employment rights, properly scrutinized, may still not live up to the standards required by international conventions, eg ILO C158 (termination) and C111 (discrimination), to which Commonwealth Caribbean states are often parties.
Chapter III of our Barbados Constitution sets out all those fundamental rights and freedoms. Not only Barbados but all Caricom member states have enshrined in their constitutions a Bill of Rights. Thus, the rights in the Bill of Rights are expressly provided for and are rights from which there is no derogation.
In order for Caricom and the CSME to work for the betterment of the region additional mechanisms ought to be put in place. In my article of June 17, 2009 (Barbados Advocate) I wrote of the need for the establishment of an administrative tribunal for Caricom. Such a tribunal would hear and dispose of all those employment cases which relate to Caricom organs, bodies, institutions and associate institutions. If Caribbean governments are to take human rights seriously, as member states of the United Nations and the Inter-American Human Rights system, a tribunal if it is not obligatory under the current international standards, is consistent with the present best practices of regional and international organizations including the ILO. Heads of government need to bring their minds to the establishment of other institutions such as a regional Human Rights Commission and an Ombudsman for Caricom, to mention a few. Obviously, we do not have to reinvent the wheel since the EU has similar such institutions. These institutions along with the constitution(s) will become the guardian of the rights of individuals in the region with the CCJ being the final court for all matters which come up for dispute resolution, especially those which involve the protection of human rights.
In speaking of the CCJ it is worth noting that precedent has already been set by the court in its original jurisdiction i.e. Johnson v CARICAD. This relates to discrimination in a labour/employment case. Article 221 of the Revised Treaty of Chaguaramas (Judgment of the Court to Constitute Stare Decisis) provides that “Judgments of the Court constitute legally binding precedents for parties in proceedings before the Court.”
Mr Singh’s article stated that “the fact is that the CCJ’s workload and efficiency largely depend on the extent of its use by member countries as a court of last resort and in having original jurisdiction in dealing with trade disputes. Many of these countries, however, continue the colonial attachment with the Privy Council while talking sweetly about its importance in the development of a West Indian jurisprudence.” I agree with Mr Singh. However, I wish to add that once there is a full fledged freedom of movement of persons within the region to obtain work we should see the court’s original jurisdiction being invoked more often as its workload increases. Beyond trade, and even the establishment of services the issue of national origin discrimination and the rights of the individual will surface again.
Right now there is no guidance from the court on these issues of fundamental importance.
Research has shown that similar happenings took place when the ECJ was first set up. Later on it saw an influx of cases, especially cases which had to do with those fundamental rights and freedoms as enshrined in the European Convention on Human Rights.
The ECJ has held that it has a duty to protect the rights of individuals as provided for by the constitutions of the member states, and that such provisions form part of the general principles of community law. The ECJ has also declared that “international treaties for the protection of human rights” can “supply guidelines which should be followed within the framework of Community law.” The European Convention on Human Rights, the International Labour Organisation treaties, the Council of Europe’s European Social Charter, the International Covenants on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights have all been cited by the ECJ as aids to the interpretation of community law. The ECJ has gradually and steadily, on a case by case basis, incorporated the protection of individual rights into its case law.
Caricom member states should be continually mindful of such fundamental rights and freedoms enshrined in our constitutions and the several international human rights conventions to which we are parties. We should also be mindful of the Caricom Model Harmonization Act Regarding Termination of Employment, and other precedents. We in the region would be well served to insist on additional safeguards such as a Regional Human Rights Commission, Ombudsman, and the Administrative Tribunal as advocated for by Dr Caleb Pilgrim in his call for protection of workers of Caricom organs, bodies, institutions and associate institutions. These mechanisms could very well assist in helping the other states who have not signed on to make a final decision and do the necessary in an effort to bring their countries and the region up to the international standards that are required thereby enabling them to commit to signing on to the CCJ.
Yours faithfully,
Doreen Johnson
