Make use of CCJ for redress

-new president urges businesses

Justice Adrian Saunders

New Caribbean Court of Justice (CCJ) President Justice Adrian Saunders has urged local businesses to utilise the provisions outlined in the Revised Treaty of Chaguaramas (RTC) to seek relief from the court for any prejudice experienced at the hands of CARICOM member states.

He issued the call on Thursday while addressing those in attendance at the annual business luncheon hosted by the Guyana Manufacturing and Services Association Limited (GSMA) at the Pegasus Hotel in Kingston.

Speaking on the role of the court in the private sector, Justice Saunders explained that although Article 222 provides an avenue for regional businesses to approach the court, very few have done so. “It is unfortunate that during the 13 years that the court has been in operation, only a few private entities have to date used the court to make such complaints,” he observed.

He explained to the audience that the court has two jurisdictions: hearing appeals and interpreting and applying the RTC, which includes the Caribbean Single Market and Economy (CSME). He stressed that the work of the court is critical to the success and survival of the CSME, while pointing out that the rights which are conferred by the treaty on private entities and Caribbean nationals are designed particularly to enable greater inter-regional and international trade, so that entities in the region can grow stronger and can compete with entities outside of the region.

“It is the CCJ that polices the arrangements that establish the CSME, bringing them under the rule of law and ensuring that no CARICOM state ignores the obligations under the Treaty,” he said. He pointed out that Caribbean people are known for being analytical and insightful “talkers” but have a “very, very, poor reputation of implementation,” which he has heard from a number of non-Caribbean people.

He stressed that the insertion of the CCJ into the RTC ensures that “we do not have a regional treaty system that is just on paper… just words… just premised on nice promises because the CCJ is the engine, the hub around which the CSME operates. It is the vehicle through which individuals and states can go to and ensure that the promises, the rights, the obligations that are set out in the treaty arrangement are enforced.”

He informed those present that Article 222 is of particular interest to the private sector as it gives private entities an avenue to approach the court and to complain about the conduct of any state in the region. “Once certain requirements are met… private individuals, which include companies, are free to seek a remedy for any prejudice that they experience to their rights under the revised treaty,” he said.

According to Justice Saunders, more people should be encouraged to use the services of the court, particularly when issues arise in exportation around the region or the way in which some states treat businesses which choose to operate upon their shores.

‘Great expectations’

President of GMSA Shyam Nokta, in a brief presentation, pointed out that in principle the CSME provides an important business opportunity for sectors such as manufacturing services and agriculture. “In reality, however, CSME is still evolving,” he said. He noted that for manufacturers in the region and in Guyana, accessing regional markets has had its “fair share of challenges” over the years.

Nokta said developments in keeping with CSME could test the legislative framework locally and at the level of the CCJ. He, however, questioned the court’s preparedness to respond to the many expectations, particularly those of the private sector.

Meanwhile, Justice Saunders noted that the CCJ has particular relevance to Guyana at this time as the country is currently well poised for a “serious economic take-off.” He made mention of the country’s oil deposits, mineral wealth and fertile terrain. “All indicators suggest that the economic prospects for this country could easily make it the envy of its CARICOM sister states, including Trinidad and Tobago,” he said, before quickly pointing out that this progress can either be thwarted or can be significantly enhanced with good governance and the faithful adherence to the rule of law.

The rule of law in this sense, he explained, implies legal accountability, fairness, respect for minorities, the observance of human rights, judicial independence, the separation of the powers, equality before the law and the absence of arbitrariness. Ultimately, he said the people of Guyana will look to the CCJ and the local courts to set appropriate standards in these matters and, in a multi-ethnic and multi-cultural society as Guyana is, those courts will have a special responsibility to ensure “equality of treatment.” Adherence to the rule of law, he said, will increase business confidence, attract investments and ensure respect for and enforcement of property rights and freedoms.

He pointed out that in constructing an independent and just society, it is in the interest of the people that the law be used as an instrument for expanding democracy and human rights, for promoting better governance, for stimulating social and economic development, for creating optimum conditions for the private sector to flourish and for securing the welfare of the citizenry.

He also submitted that it is very important to have a second tier appellate court, such as the CCJ. “Having a first tier court of appeal as a country’s final appellate court is not an ideal situation. First of all, while first tier courts of appeal normally sit in panels of 3, second tier appellate courts, like the CCJ, usually sit in panels of at least 5. It goes without saying that having five experienced judges looking at a legal dispute is always likely to produce a better result than having 3 judges examining the same issue,” he said.

‘Hopelessly inadequate’

Justice Saunders also noted the court’s role in revamping and replacing Guyana’s Civil Procedure Rules, which he said demonstrated its interest in ensuring access to justice.

These rules speak to how lawyers must begin a case, what procedure must be followed, what timelines should apply, and the role of the court registry, among other things.

Justice Saunders noted that since the turn of the last century, the rest of the Caribbean region had embraced modern civil procedure rules. Unfortunately, Guyana had lagged behind everyone else. To demonstrate how bad a situation Guyana was in prior to its intervention, he said that while the justice system in the rest of the region was “driving SUVs, Guyana’s was chugging along in a horse and buggy.”

Making it clear that he meant no disrespect, Justice Saunders stressed that the Guyanese judges and court staff were doing the best they could. “But that is my best metaphor of the objective situation with which they were faced. Guyana’s rules had become hopelessly inadequate,” he said.

He explained that inadequacy of the rules was evident in a number of situations, including the dismissal of meritorious cases on “flimsy, technical grounds” and the utilisation of antiquated procedures that were just totally unsuited.

“Businessmen and women know that time is money and with those old rules they were, and rightly so, utterly frustrated at the inordinate length of time it took to hear simple disputes and the massive backlogs in the civil courts,” he stressed.

He said that the CCJ responded to this situation by working with the Guyana judiciary to introduce the new Civil Procedure Rules, which are currently in place and train judges, lawyers and court staff. In the present transition, he added, there were some teething issues but the Guyana private sector and the man-on-the-street are now far better served in being able to access justice in an efficient manner.

Apart from members of the business community, acting Prime Minister Khemraj Ramjattan, Attorney General Basil Williams, Minister of Telecommunications Cathy Hughes and former president Donald Ramotar and former PPP Cabinet members were in attendance at the luncheon.

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