Trinidad Cement Limited (TCL) and subsidiary TCL Guyana Inc. (TGI) yesterday filed an application in the Caribbean Court of Justice (CCJ) against the Guyana government requesting the CCJ to hold this country in contempt of court for failing to implement the Common External Tariff (CET) on cement from non-CARICOM sources as ordered by the court.
The TCL Group said in a news release that in the application, TCL and TGI are requesting the CCJ to summons Attorney General Charles Ramson SC to give evidence and show cause why he should not be held in contempt of court for failing to obey the order of the CCJ.
According to the release, TCL views this failure to abide by and implement the ruling of the CCJ “as a flagrant departure from the rule of law.”
“It also negatively impacts upon the public’s confidence and respect for the court,” the TCL Group asserted.
It is hoped, the release added, that Guyana will remedy this state of affairs expeditiously and the CET on imported cement into Guyana will be immediately re-established.
On August 20 this year the CCJ had ruled that the Government of Guyana was in breach of the Revised Treaty of Chaguaramas (RTC) by failing to apply the CET on cement and therefore ordered that within 28 days from that date, Guyana implement and thereafter maintain the CET in respect of cement from non-CARICOM sources.
The release said further that while an application was subsequently made to CARICOM by the Government of Guyana to waive the CET on cement, the request was turned down before the 28-day deadline stipulated by the CCJ. The time for compliance with the order of the court also expired on September 17, and Guyana has not taken any steps to act in accordance with the ruling of the CCJ.
TCL and TGI had accused the Guyana government of breaching the RTC by unilaterally suspending the CET on cement imported from countries outside of CARICOM and was later granted leave to sue the government after approaching the CCJ.
The court in its ruling on August 20, 2009 held the view that TCL and TGI are entitled to the benefit of having the CET maintained. But the CCJ judges declined the claim by both companies for consequential loss of income and profits, ruling that there was no substantial evidence to support it. However, Guyana was ordered to pay two-thirds of the claimants’ court costs.
TCL owns 80% of the Guyana-based TGI which imports cement in bulk from TCL and Arawak Cement Limited, a wholly owned subsidiary of TCL Inc. in Barbados.
Attorney General Ramson had said that Guyana would reinstate the CET on cement as ordered by the 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 had 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 had said suggests that the court had assumed powers akin to that of sovereign states.
The AG had pronounced on the judgment of the court at a press conference soon after in which 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.
He had 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.”
Foreign Minister Carolyn Rodrigues had been consulted and was expected to take the necessary steps after consultation with Cabinet to have the CET reinstated, according to the AG. He disclosed that Guyana would have also paid 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.”
