CCJ MATTERS – AUGUST 2017

 

 

 

 

YOUR MONTHLY NEWS AND UPDATES ABOUT THE CCJ – August 2017

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People of the CCJ – Mr. Maurice Piggott, Security and Logistics Manager

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Featured Article – CAJO to Host 5th Biennial Conference in Curacao

The Chairman of CAJO, and Judge of the CCJ, the Honourable Mr. Justice Adrian Saunders. After a recent visit to Curacao, to attend the installation of the new President of the Joint Court of Justice of Aruba, Curaçao, Sint Maarten and Bonaire, St. Eustatius and Saba and to attend his first planning meeting with the local organizing committee, Mr. Justice Saunders felt constrained to remark that he “has never seen a judiciary more prepared and enthused about hosting a CAJO Biennial Conference than the judiciary of Curacao”.

 

The 5th Biennial Caribbean Association of Judicial Officers (CAJO) Conference will be held during the period 28th– 30th September 2017 at the Renaissance Curaçao Resort in Willemstad, Curaçao. The Conference is being held under the theme “Innovative, Independent and Responsive – the Modern Court”. The Chairman of CAJO, and Judge at the Caribbean Court of Justice (CCJ), the Honourable Mr. Justice Adrian Saunders stated, “our distinguished group of speakers, panelists and session chairs will include academics, judicial officers and some of the leading thinkers in their fields”. The Conference, which will feature over 20 sessions, will explore cybercrime, gender issues, the impact of social media, judicial transparency and accountability, performance measurement, in addition to other topical issues.

 

Support for CAJO is just one of the ways that the Caribbean Court of Justice encourages judicial education and reform in the Caribbean. The CAJO 5th Biennial Conference brings together the region’s Chief Justices, Judges, Magistrates, Masters, Registrars, Executive Court Administrators and other Judicial Officers for discussions aimed at ventilating best practices and developing new ideas and techniques to enhance the efficiency and effectiveness of the administration of justice. The Conference will also include meetings of other regional bodies including the Caribbean Association of Women Judges.

 

Professor Sir Hilary Beckles opens the CAJO 5th Biennial Conference as the first keynote speaker. Sir Hilary Beckles is Vice Chancellor of the University of the West Indies, a distinguished administrator, and an internationally reputed historian. He has had a stellar career within the UWI becoming, at age 36, its youngest scholar to be promoted to a personal chair.

 

Dr. Ernst M.H. Hirsch Ballin is the featured keynote speaker on the second day of the Conference. Dr. Ballin is a Distinguished University Professor at Tilburg University and President of the Asser Institute and Professor of Human Rights Law at the University of Amsterdam. In November 2016, he was appointed Honorary University Professor because of his exceptional track record in the field of teaching and interdisciplinary research. He is the first professor at Tilburg University to receive this title.

 

Justice Saunders lauded the Joint Court of Justice of Aruba, Curaçao, Sint Maarten and Bonaire, St. Eustatius and Saba, the gracious hosts of this year’s biennial conference. The current President of the Court, Madame Justice Saleh, heads the local organising committee for the Conference, while the former President, Justice Evert Jan van der Poel, is a long-standing member of CAJO’s Management Committee.

 

Full details of the Conference, including draft agenda, registration details and other information that will be useful for conference attendees, can be found on the CAJO website, www.thecajo.org.

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JUDGMENT HIGHLIGHT -Speednet Communications Limited v Public Utilities Commission

The Caribbean Court of Justice (CCJ) in December 2016 delivered its judgment in the case of Speednet Communications Limited v Public Utilities Commission. The CCJ, the highest appellate court in Belize, reversed the Court of Appeal and found that Speednet Communications Limited proved its case. The Public Utilities Commission is the regulator for the telecommunications industry in Belize, while Speednet Communications is a private telecommunications services provider in that nation. The Court ordered the Public Utilities Commission to refund Speednet Communications the sum of BZ$792,000, less the lawful licence fee of BZ$1,400. The dispute between the parties arose out of a difference in interpretation of the relevant regulations which set out the licence fees of BZ$100 per ‘channel’.

 

The CCJ rejected the view of the trial judge and the Court of Appeal in Belize and found that the term ‘channel’ could refer to either ‘voice’ channel or ‘radio frequency’ channel. The Court determined that the Public Utilities Commission, as the author of the regulations, should bear the consequences of the ambiguity and would therefore be entitled to only charge BZ$100 per ‘radio frequency’ channel. The CCJ noted that while this finding was not necessarily the technologically correct definition of the word ‘channel’, which could not be determined on the basis of the evidence before the Court, it was the most appropriate meaning based on the application of legal principles to the wording in the regulations. Access the complete judegment here: Judgment.

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Seeing Justice Through a Gender Lens

by Ms. Anika Gray, Gender Coordinator at the JURIST Project

We like to think that justice is blind. It is not. Ideologies, prejudices, and biases have an impact on the decision-making of those responsible for the dispensation of justice in our legal system. Ideas about gender, and the prejudices and biases those beliefs create, are pervasive throughout society, including the justice system.

 

This is not surprising. The beliefs about the ways in which men and women should behave are taught and experienced from a very young age. This type of gender socialisation impacts our lives in more profound ways than we often understand. Its influence on the functioning and behaviour of those who administer justice can therefore be hard to avoid.

 

In fulfilling its mandate to improve the administration of justice, the JURIST Project has adopted as a key priority the development of initiatives that serve to improve the capacity of judges, court personnel, and administrators to deliver gender-responsive court services. 

 

There are a couple of ways decision-makers in the justice system contribute to women’s marginalisation, reinforce limiting stereotypes regarding masculinity and ultimately hamper access to justice for women and men. 

 

First, notions about women being temptresses and men being unable to control their sexual desires, can influence how sexual assault cases are investigated and adjudicated. In cases of statutory rape, girls are often said to get what they deserved. Women involved in rape cases have to often prove to juries that they were not loose women and did not dress provocatively so as to tempt the man. In both cases there is an underlying, and rather insulting, assumption that men are unable to control their sexual urges.  There is little understanding that rape is not really about sexual desire but about the ability of the perpetrator to have power over the person being assaulted. 

 

Second, in custody and maintenance cases gender stereotypes also influence how men and women are treated by the justice system. In awarding maintenance for children living with the mother, the courts sometimes fail to take into account the inordinate burden that women face in child rearing. In most cases women are both breadwinner and responsible for child rearing duties in the home. The small sums of money awarded for child support reflects this lack of appreciation for the roles women play. 

 

And third, societal expectations about who should have primary responsibility for child rearing also works against men being granted custody except in exceptional cases. Oftentimes a man’s role in a child’s life is seen as confined to providing financial support. This reinforces the notion that men are not equally responsible for the nurturing of their children. It also places a double burden on Caribbean women, who are often saddled with the responsibility of bringing home the bacon and preparing it as well.

 

The JURIST Project, with the support of UN Women, has developed a three-pronged gender strategy to address the negative impact of gender norms on the outcomes in court cases. The three prongs are: (1) gender sensitisation training for those who deliver court services; (2) gender focused public education for the users of the court system; and (3) development of gender-responsive court policies and procedures to guide the behaviour of those who use and work within the courts.

 

In keeping with its gender strategy, the JURIST Project team is now working on two ground-breaking initiatives.  The first is the Model Guidelines for Sexual Offence Cases which is intended to encourage better management of sexual offence cases, ensure that survivors of sexual assaults (including children) are treated with respect, formalise sentencing guidelines for sexual offenders and improve treatment of juveniles charged with and convicted of sex crimes. The Guidelines are being developed in consultation with a wide cross section of justice sector judicial officers and personnel from the Caribbean region. The second initiative is the development of Gender Equality Protocol for Magistrates and Judges in five CARICOM countries.

 

The first is the Model Guidelines for Sexual Violence Cases which is intended to encourage better management of sexual violence cases, ensure that survivors of sexual assaults (including children) are treated with respect, formalise sentencing guidelines for sexual offenders and improve treatment of juveniles charged with and convicted of sex crimes. The Guidelines are being developed in consultation with a wide cross section of justice sector judicial officers and personnel from the Caribbean region.

 

The second initiative is the development of a Gender Equality Protocol for magistrates and judges in five CARICOM countries. The protocol will assist judicial officers to adjudicate cases through a gender lens. It builds the capacity of judges and magistrates to identify and address the social, economic and cultural circumstances that perpetuate gender inequality in cases dealing with custody, maintenance, sexual violence, domestic violence and human trafficking. The protocol is being developed in partnership with UN Women and the Caribbean Association of Judicial Officers (CAJO). 

 

Negative gender norms have and continue to impede access to justice for men and women in Caribbean societies. It means therefore that any attempts at improving the administration of justice must tackle gender norms that reinforce gender inequality. As such, the JURIST Project is committed to assisting decision-makers to be aware of, and sensitive to, the realities of the lives of those who seek the protections and remedies that the law offers. 

 

To learn more about the work of the JURIST Project, visit their website: www.juristproject.org

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REGIONAL NEWS – Eastern Caribbean Supreme Court adopts Judicial Insolvency Network’s Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters

The Eastern Caribbean Supreme Court in the Territory of the Virgin Islands has adopted the Judicial Insolvency Network’s Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters, which will be referred to as “the Guidelines”.  The Guidelines were adopted by Practice Direction 8, No. 2 of 2017 made pursuant to Rule 8(2) of the Insolvency Rules, 2005 and became effective on 18^th May 2017.

 

The overarching objective of the Guidelines is to improve the efficiency and effectiveness of cross-border proceedings relating to insolvency or adjustment of debt matters opened in more than one jurisdiction (“Parallel Proceedings”) by enhancing coordination and cooperation amongst courts under whose supervision such proceedings are being conducted.                               

 

The Judicial Insolvency Network held its inaugural meeting in Singapore in October 2016.  The meeting was attended by judges from ten jurisdictions including the British Virgin Islands.  During the meeting, the judges discussed the need for greater cooperation between courts in cross-border insolvency matters and produced draft Guidelines.  The Guidelines have been adopted by the following jurisdictions:

 

• Bermuda   9 March
• Delaware   1 February
• England and Wales  5 May
• Singapore   1 February
• Southern District of New York  17 February
• British Virgin Islands 18 May

 

The Guidelines consist of an introduction, 14 guidelines, and an Annex that sets out procedural issues relating to joint hearings between courts. The introduction outlines the basic aims and objectives of the Guidelines and encourages parties in Parallel Proceedings to consider the Guidelines at the earliest practicable opportunity with a view to enhancing coordination and cooperation among courts under whose supervision the debtor’s estate is being administered. The sharing of information and the avoidance or minimization of costs and inconvenience are encouraged. Where there is agreement among the parties they can make an application to the court to establish protocols or orders for dealing with the debtor’s estate.

 

The numbered guidelines set out detailed requirements and procedures for entering into and implementing the protocols or orders. The process is voluntary but once the parties enter into a protocol which is approved by the court they will be required to conduct themselves in the continuing litigation in accordance with the terms of the protocol.

 

The Guidelines also deal with communication between courts for the purpose of making orderly arrangements for hearings.  Where there are joint hearings the courts can communicate directly on procedural, administrative and preliminary matters relating to the joint hearing.  Communication between courts can take place by telephone, video conference call or other electronic means. Parties are entitled to be present or be represented during such joint communications and the communications shall be recorded. A written transcript may be prepared and treated as the official transcript of the communication. Copies of the transcript may be filed in court as part of the record of the joint proceedings. Subject to local laws and procedures a court may permit a foreign party or his representative to be heard in the joint proceedings.

 

The Guidelines make provision for the recognition and acceptance of orders made by foreign courts, and of the laws, regulations, and practices of general application relating to proceedings in other jurisdictions, unless there is a proper objection on valid grounds. The annex sets out in greater detail the procedures in the numbered Guidelines relating to joint hearings in those cases in which it is decided to hold a joint hearing.

 

The Guidelines were implemented following wide consultation in BVI. They are a bold and welcome attempt at minimizing the costs, inconvenience and expense of acrimonious litigation between parties vying for a greater share of a debtor’s estate where the estate is located in more than one country. They represent another step in the processes started by the courts of ensuring that as far as practicable and as permitted by law a debtor’s estate is distributed among the creditors in the most equitable manner and with the greatest benefit to the general body of creditors. Use of the Guidelines is a voluntary process. When they are adopted there is a real likelihood that all interested parties will reap greater benefits from the estate.

 

If implementation of the Guidelines in the Territory of the Virgin Islands is successful, it is anticipated that consideration will be given to adopting them in other States and Territories of the Eastern Caribbean. For more information about the Eastern Caribbean Supreme Court, visit their website at www.eccourts.org