Wednesday, November 22, 2017
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Nothing could be further from the truth in blaming the colonial mindset



C douglas 2017According to Caribbean Court of Justice (CCJ) Justice Adrian Saunders, in a recent lecture in St Kitts, a "colonial mindset" is to blame for the reluctance on the part of Caribbean Community (CARICOM) governments to embrace the court as the final court of appeal.


As someone who has litigated matters in several jurisdictions around the world, including the CCJ, I can safely say that nothing could be further from the truth.


The lack of confidence in the court by the Caribbean people is a direct result of the colonial mindset adopted and displayed by Justice Saunders himself and his colleagues at the CCJ.


Perhaps the most recent decision by the court provides the clearest example of this slave mentality to date.


The court ruled, in the much anticipated Tommy Lee Sparta matter, that the private entity, CARICOM national, part owner of a company registered specifically to conduct intra and extra CARICOM trade and signatory to a contract for service, was barred from accessing the CCJ in its original jurisdiction, in bringing an action against the government of Dominica.


This decision represents the single biggest step backward for economic integration in the Caribbean and the implementation of the CSME, which were top priorities at the recently concluded heads of government meeting in Guyana.


In simple terms it means that the CCJ will not rise above petty politics, and protect investors against illegal violations of the Revised Treaty of Chaguaramas (RTC) perpetrated by governments against investors when it is not politically expedient to do so.


It is this slave mentality demonstrated by Justice Saunders and his colleagues at the CCJ that has clearly undermined the integrity of the court, to the detriment of the region achieving full independence.


There is no better example of regional integration than the cultural/entertainment industry, with artistes travelling freely to member states taking part in cultural events, music/cultural festivals, and music flowing freely from different member states being shared, be it reggae, soca, bouyon, dancehall and/or other art forms which has helped define the Caribbean landscape and become an integral part of our collective tourism product.


In fact, this is why, the Revised Treaty of Chaguaramas makes provision for musicians to be able to travel freely throughout member states under Article 46 for this very purpose.


It was to this extent, as part of an annual event, in full reliance on the RTC that the applicant had contracted with Jamaican firm Supreme Promotions to host a concert headlined by a Jamaican artist to mark the opening of carnival in Portsmouth, Dominica.


As such, in full reliance of the RTC, bookings were confirmed, fees paid, plane tickets bought, hotel accommodations paid, stage and lights installed, sponsors secured, advertisers paid, staff hired, bars stocked, food prepared, opening acts signed to performance contracts, and tickets sold to the public.


However, when the artists landed at Douglas/Charles airport in Dominica, the passengers were denied entry, arrested, denied due process, imprisoned under inhumane conditions, and deported the following day, causing the cancellation of the highly anticipated concert, and substantial damages to concert organizers, both pecuniary and non-pecuniary.


According to the government of Dominica during the CCJ hearing on December 12, 2016, their actions were based on national security concerns. 


However, when asked by Justice Saunders’ CCJ colleague Justice Wit to substantiate this claim, Dominican attorney general Levi Peter simply refused to answer the question, much to the amusement of the court, with Justice Wit himself breaking out in laughter regarding the most bizarre notion being put forward by Dominica that an artist with no criminal record, a valid CARICOM passport, a return ticket, a performance contract, and a hotel booking paid for by the applicant, could pose a security threat to nation state.


Justice Saunders, and his CCJ colleagues in a most bizarre effort to mask their unethical mixture of judicial decision making and politics came to the conclusion that the artist and his entourage had access to the court, the 2,500 patrons who are not privy to any contract for service could access the international court, opening the floodgates for litigation, which could not possibly be the intention of the Treaty, but the applicant, the one person who contracted to receive the service, the investor if you will, is barred from approaching the very same court!


It is to this extent that hollow political rhetoric by Justice Saunders becomes most illuminated. 


According to Justice Saunders in his recent address in St Kitts, "We at the CCJ have not hesitated to take the measures we have considered appropriate whenever we were convinced that a Caribbean government was compromising the rule of law..."


This is laughable In light of this decision, and the refusal of the CCJ to hear the case, much less hold the government accountable, for what is a clear compromise of the rule of law played out on the international stage, widely covered by the regional press.


Perhaps, more importantly, the CCJ in its original jurisdiction, is an international court, which means this appalling and politically motivated decision is not only binding on the applicant, but on all signatories to the RTC, which has disastrous implications for all investors in approved sectors, as agreed by heads of government. 


It means that any government can sabotage the commercial interests of private sector investors operating in sectors approved by the heads of government, and the court established specifically to resolve such disputes, has barred all investors under such service contracts from approaching the court, as a matter of precedent established in this case.


If the judicial arm of CARICOM is not prepared to protect investors from government's blatant violations of the RTC, to the detriment of the private sector, then clearly the full implementation of the CSME becomes a farfetched impossibility.


I therefore agree with Justice Saunders when he says: “During the colonial experience the harshest forms of oppression were meted out by our immediate persons we interfaced with in our respective countries. Whether the guy who had the whip with the gang, or the slave master, or the local governor and very often in order to ameliorate that harshness you had to petition England to get redress and very often you got redress because it didn’t suit colonialism for those kinds of excesses to occur..."


According to the Caribbean jurist, that practice led to the region’s people growing up with the notion that justice is something which is best obtained from overseas.


Indeed until Justice Saunders and his colleagues at the CCJ can free themselves of the mental shackles of their colonial mindset, this will continue to be the case for the foreseeable future.


Disclosure: Cabral Douglas is the applicant in the CCJ matter: Cabral Douglas v Dominica


Cabral Douglas is an attorney at law and part owner of Dominica’s oldest entertainment venue, the Arbeedee Cinema, which has been hosting events since 1973.

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