CCJ MATTERS – SEPTEMBER 2017
YOUR MONTHLY NEWS AND UPDATES ABOUT THE CCJ – SEPTEMBER 2017
The passage of the recent hurricanes Irma and Maria have highlighted that despite living in different countries, at the heart of it we are all one Caribbean. We are heartened by the outpouring of support from the region as we band together to support those among us in need. The devastation that was wrought in the affected nations has distressed the judges and employees of the CCJ. What affects one of us affects us all. We have started an internal donation drive for our Caribbean neighbours, as well as, funding relief efforts for a number of colleagues in the judiciary. We pay tribute to the resilience of our people as we too press on with our work in the region and support them in their rebuilding efforts.
The featured article this month is about the inclusion of one of the CCJ’s cases in the Venice Commission’s database. In the matter Attorney General and Others v Joseph and Boyce, a problem had arisen because although Barbados had signed on to the Inter-American Convention for Human Rights, however, the legislation necessary for it to be incorporated into domestic law had not passed. The CCJ held that although individual citizens derived no rights under treaties concluded between States, the promotion of universal standards of human rights showed a tendency towards a confluence of domestic and international jurisprudence and could give rise to certain legitimate expectations. The Boyce decision clarified the intersection of international treaties according human rights to Caribbean citizens. The principle of legitimate expectation has since been applied in several courts in the Commonwealth.
This month’s Registry Report will feature the reasons for decision that was delivered in August, despite the fact that the Court was on hiatus, in the case of Progresso Heights Ltd v Wilfred Elrington and Pitts & Elrington. The CCJ’s Protocol Manager, Dr Michael Lilla, leaves the Court at the end of September. An article featuring Dr Lilla, who has been with the CCJ since inception, is included in this issue. We are grateful for his service and wish him well as he begins this next chapter of his life. News from around the region this month comes from Jamaica where they are exploring expanding the use of drug courts in that country. Also included is an article from the CCJ’s own Mr. Justice Hayton on the issue of insolvency in the OECS.
I hope you are edified, as well as, entertained by this month’s newsletter.
Featured Article – CCJ’s Constitutional and Human Rights-Based Cases are Published in International Law Database
The Caribbean Court of Justice’s (CCJ) first submission to the European Commission on Democracy through Law (the Venice Commission) has now been published in the Commission’s CODICES database.
In late 2015, the CCJ was invited to enter into a co-operation arrangement with the Venice Commission, the Council of Europe’s advisory body on constitutional matters,to have its decisions, and their summaries, in cases concerning Constitutional law and human rights law issues to be included in CODICES. These cases span both the Appellate and Original Jurisdictions of the Court. CODICES is the Venice Commission’s free public access InfoBase on Constitutional case law which provides access to over 8,000 judgments and summaries in cases decided by Constitutional Courts and courts which deal with similar matters, including international courts.
The submission comprised the summary (Précis) and full text of the Court’s seminal decision in the case of The Attorney General, Superintendent of Prisons and Chief Marshal v Jeffrey Joseph and Lennox Ricardo Boyce  CCJ 3 (AJ). This appeal was filed and heard in the Court’s Appellate Jurisdiction.
It was established by the Commission’s Secretariat in Strasbourg and hosts decisions and summaries in English, French and other languages. According to Tanja Gerwien of the Constitutional Justice Division of the Commission, the database “greatly facilitates comparative research and is an important source of inspiration for judges and constitutional practitioners”. The President of the CCJ, the Rt Hon Sir Dennis Byron, noted that, “the Court takes great pride in being afforded the opportunity to contribute to the advancement of jurisprudence in human rights law on an international scale through the publication of its decisions on CODICES.”
In Joseph and Boyce, a case from Barbados, the CCJ dismissed the appeal and made two very significant pronouncements on Constitutional issues. Firstly, that the exercise of powers of prerogative mercy by the Governor General, under section 78 of the Barbados Constitution, can be reviewed by the courts where there is a breach of the rules of procedural fairness. Secondly, the fact that Barbados had ratified the American Convention on Human Rights and had acted in a manner which was compliant with the Convention, created a legitimate expectation that Joseph and Boyce would have been afforded a reasonable time for the filing and completion of proceedings before the Inter-American Commission on Human Rights and for the Commission’s report to be made available to the Barbados Privy Council in support of their petition for commutation of their death sentences. This legitimate expectation was not affected by the fact that the treaty was not incorporated into domestic law and the State’s attempt to execute the men without giving them that opportunity was a denial of their right to protection of the law for which the court had an inherent remedy.
The CCJ agreed that the Court of Appeal acted properly in commuting the death sentences imposed on the men. The CODICES entry for Joseph and Boyce can be accessed here.
Dr Michael Anthony Lilla has been the Court Protocol and Information Manager at the Caribbean Court of Justice since 2005 and a protocol professional since 1998. He is a graduate of the University of Paris, the University of the West Indies, and of the International School of Protocol and Diplomacy in Brussels. He is a Fellow of the Institute for Court Management (Virginia, USA).
He has worked as a secondary school teacher, a part-time lecturer as well as Research Associate at the Institute of International Relations of the University of the West indies and has been a simultaneous interpreter since 1976. In 1998, Dr Lilla was elevated to the rank of Chevalier dans l’Ordre des Palmes Académiques by the Government of France for “services rendered to French culture”. Dr Lilla leaves the Court at the end of September, so the CCJ Matters team interviewed him about his journey at the CCJ and a few personal insights.
You’ve been with the CCJ for over a decade, what made you join the organization and what continues to drive you?
I joined the CCJ because it was a dream come true. I had written a PhD thesis about Caribbean dependency, and here I had a golden opportunity to be part of the start-up of an independent Caribbean institution. That notion still motivates me to some extent, though of course, I am not now as starry-eyed as then.
What is your first memory of the organization?
Familiar faces. I assumed duty, a mite nervously, in what was then a brand-new international organisation. I was pleased to recognise on staff a number of people I already knew. That was comforting.
What is your most enduring memory?
The Inauguration. It was splendid, grandiose, wonderful. Even though I had already been on board for three months by the time the Inauguration was celebrated on 16 April 2005, it was still marvelous to me, because it anchored a Caribbean dream in concrete reality.
What would you say is your strongest belief about the CCJ?
Contrary to what many Privy-Council retentionists say, the CCJ is long overdue. The Brits have been prompting us to pick up our bed and walk for years – since at least 1833. My strongest belief is that, perhaps later, rather than sooner, the legal fraternity in all the CARICOM states will accept that and push for full accession by all signatories to the Agreement Establishing the CCJ.
You are known for your encyclopedic knowledge, and your willingness to share that knowledge with others. How do you accumulate that information?
I was sent to play school at three years old. My old Jewish teacher, Miss Hezekiah, noted my curiosity re the printed word and encouraged me to read. She also advised my mother to encourage me as well. Under those two influences, I read just about any scrap of printed paper that came under my eyes, such that at age 12, I had the reading ability and the vocabulary of a 16-year old. One of the things I discovered through wide reading is that knowledge accumulated and stuffed under the seat of your pants serves no real purpose. Shared knowledge educates everyone and makes the world a more enlightened place. I continue to read widely and to share what I learn with whoever is interested.
Why did you choose protocol as a career?
It chose me, really … In the midst of recycling myself from education into international relations at 40 years of age, I one day espied in the newspaper a newly-created position of Protocol Officer in the Judiciary of Trinidad and Tobago and applied merely to test the waters, not expecting anything, since I was relatively green and then had precious little protocol experience. I was hired, based on other strengths, I suppose.
You have been working in protocol for some time; what traits do you think a good protocol officer should have and why?
A good protocol officer must be knowledgeable and personable. Knowledgeable, because your principals will depend on you for information and advice which you must compulsorily be able to provide. Personable, because a protocol officer depends a great deal on the cooperation of others to get a job done. No one wants to work with a sour lemon.
The field of protocol continues to evolve. What are the interesting things you gleaned from the recent conference you attended?
Protocol continues to be a dynamic, energising field of endeavour. This means that an active PO must not fall into a rut, but has to keep abreast of current practice. An informed, savvy protocol officer (by whatever designation) is an asset to any organisation wishing to be confident of successfully executing its mandate. One noted also that the provision of protocol services is becoming a huge private sector enterprise … the scope for expansion of the profession is enormous.
You are retiring from the CCJ in a few short weeks; what will you do next?
My Kindle and the gym. Mens sana in corpore sano (a healthy mind in a healthy body).
What is your personal philosophy?
Taught to me by a very wise man in 1970: “You can never escape the consequences of your own actions.” This has guided me most effectively over the ensuing 47 years.
What does true leadership mean to you?
1-inspiring others with enough trust and confidence in your ability to want to follow your lead; 2-dealing with peers and subordinates in a manner completely above board, eschewing subterfuge; 3-surrounding oneself with strong, autonomous individuals. Empowering others can only redound to the benefit of the team and the institution as a whole.
What is the most inspiring book you have ever read?
Easy. The Road Less Travelled, by Morgan Scott Peck. The back cover read, “This book will change your life.” It did.
What will you miss most about the CCJ?
Being able to facilitate procedures for colleagues, especially when that helps them out of a tight spot.
The Court closed on the 31st of July and will reopen in October 2017. While the Court is on hiatus, the judges continue to work on important projects, including judicial reform activities and judicial education work like the upcoming Caribbean Association of Judicial Officers’ conference. The Registry has also used this period to update and refine data in Curia, the CCJ’s court management platform, as well as, scheduling cases for the upcoming court term.
In addition, the judges of the CCJ also continued to work on the matters that had been heard. For example, the CCJ released the reasons for decisions in the case of Progresso Heights Ltd v Wilfred Elrington and Pitts & Elrington during August.
On July 21, 2017, the Caribbean Court of Justice (CCJ) heard the case and at the end of the hearing the Court ordered that Mr. Wilfred Elrington SC, and his law firm, Pitts & Elrington, return all the conveyancing documents Progresso Heights Ltd sent from Florida to Mr. Elrington’s wife at the law firm’s address between September 2009 and June 2010, together with title certificates that had been issued in respect of eight of those documents. Written reasons for the decision were provided on August 7th. To read the full reasons for decision, click here.
The Caribbean Court of Justice (CCJ) yesterday ordered that SM Jaleel & Co Ltd (SMJ) and Guyana Beverages Inc. be repaid monies collected in unlawful environmental taxes imposed by the Republic of Guyana. The Court however limited their claim to taxes collected within 5 years of the claim, from 2011 to 2015. The companies’ claim was filed in the Court’s original jurisdiction which deals exclusively with cases concerning the Revised Treaty of Chaguaramas (RTC) which governs the Caribbean Community (CARICOM).
SM Jaleel & Co, a Trinidad and Tobago-based company which manufactures and sells beverages, is the sole owner of Guyana Beverages Inc., a Guyanese company which sells and distributes SMJ’s beverages imported into Guyana. The companies approached the Court for a declaration that Guyana’s environmental tax of G$10 per beverage container violated the provisions of the RTC as Guyanese companies were not eligible to pay this tax.
The companies applied for an order for reimbursement of US$11 million in taxes paid from January 1, 2006 to August 7, 2015. Guyana, in its defence, argued that the companies had incorporated the tax into the price of their beverages and passed on the tax to their customers. On that basis, Guyana further argued that reimbursement of the tax collected would result in the unjust enrichment of the companies. Guyana also argued that the companies should receive no reimbursement as they had delayed too long before making their claim. Read the judgment here: Judgment.
by Mr. Justice David Hayton, Judge of the Caribbean Court of Justice
The courts have some capacity to modernise insolvency law but it is very limited. Take three CCJ cases:
LOP Investments Ltd Demerara Bank Ltd  CCJ 10
This was concerned with whether a company’s secured debentures ranked as “conventional mortgages” under Guyanese Roman-Dutch law so that only a judicial sale was possible even if the receiver was expressly given a private power of sale? No, so the receiver could proceed with a private sale.
Atlantic Corporation Ltd v Development Finance Ltd  CCJ 6
Every “transfer of property” made by a debtor to prejudice or defraud creditors is liable to be set aside by creditors. Were only transfers covered? What about creation of long leases or mortgages? Yes, included.
Canadian Imperial Bank of Commerce v Gypsy International Ltd and Beepat  CCJ 16
The Bank had a secured debenture over Gypsy’s property, which was then damaged by fire, erroneously thought at first to be caused by a director’s arson. Thus the insurer cancelled the fire policy, the lack of insurance then triggering a breach of covenant in the debenture deed. The wording of this covenant enabled the Bank immediately to appoint a receiver and manager and it did so without making any demand for payment of the money due to it, which if paid would have avoided such an appointment, alleged to have had a calamitous impact on the company’s business. The receiver sold what he could to recover the money, putting the company out of business. The company alleged the appointment was void because as a matter of law it could not be made without making a demand for payment of money due and allowing a reasonable but short period for the money to be paid as under Canadian law.
The latter, however, depended upon the constitutional protection against unreasonable seizures of property by anyone under Art 8 of the Canadian Charter of Rights and Freedoms. No such constitutional protection existing in Barbados, the CCJ held commercial parties to the terms of their agreement designed to enable a lender to take immediate steps if it considered this was needed to protect its legitimate interests.
The Barbados Bankruptcy and Insolvency Act now provides greater flexibility. By s 10B a secured creditor must give a prescribed notice of intent to enforce a security by appointing a receiver and cannot do so until 10 days after the notice unless the debtor consents. However, in that period the creditor can seek the appointment by the Court of an interim receiver if necessary for the protection of its interests. Insolvency reform needs to come from legislation and is necessary for a thriving economy. For a country’s wealth to develop it needs to encourage business enterprises which inevitably have to take on some risk of failure. Businesses need capital, and the provision of credit to them at a reasonable price is vital to them for their development.
Those with capital are keen to lend their capital to acquire interest for the use of their money over time. Businesses, hopefully, will generate capital and income profits, while providing work for their own workers and other workers involved in supplying materials or services for businesses. Such workers with money to spend will help drive the economy forward. The Government benefits greatly from all these matters and so should be keen to encourage lenders and borrowers to work together in their mutual self-interest and enact insolvency legislation that will help to achieve this.
Studies have shown that insolvency legislation that balances the interests of creditors and debtors produces a higher level of credit available to help businesses develop, provides credit at a lower cost and, if things go wrong, produces an increased return for creditors.
A problem, however, has arisen from the imbalance of the interests of lenders and borrowers. Traditionally, the law has preferred the interests of lenders over those of borrowers, giving effect to written instruments devised by the best lawyers that lenders can afford and to legislation influenced by a weighty group of lenders. The voices of persons involved in small and medium enterprises were hardly heard until economists began speaking up for them and made lenders and Governments realise that everyone would benefit if the interests of lenders and creditors were more evenly balanced.
Plenty of lenders existed, especially secured lenders, but the harsh treatment of borrowers whose enterprises resulted in their bankruptcy was leading to too few persons being prepared to build businesses based upon credit and so to less economic growth then desired by Governments. So what can be done?
In this hemisphere the Canadian insolvency legislation has shown the way to ameliorate insolvency law in favour of borrowers and remove the historical distinction between individual and corporate insolvency. Thus Trinidad & Tobago, Barbados and Jamaica have enacted new insolvency legislation based upon Canadian law and in the OECS consideration is being given towards some harmonisation of recently developed insolvency laws.
A major focus is upon moving towards a universal system for taking security of all types of security and for perfecting it by registration or otherwise. It seems that there is already sufficient protection for the interests of creditors against wily debtors who make dispositions of property within a relatively short period before becoming bankrupt or who make dispositions made with intent to defraud creditors or to unduly prefer particular creditors.
The possible rehabilitation of debtors
Following the Canadian example, the interests of debtors, however, are furthered by making available a rehabilitation process which may well result in more being made available to satisfy creditors’ claims than if there were no such process.
Why not try to help ‘insolvent’ persons who have not yet been made ‘bankrupt’ whether by a court order made at the behest of creditors or by a voluntary assignment of all property to a trustee generally for the benefit of creditors? Why not have such an insolvent person retain possession of its property, work with an experienced insolvency practitioner, to be known as a ‘licensed trustee’, who will set out the position, put forward a proposal to satisfy creditors and file it with the insolvency Supervisor to call and chair a meeting of creditors.
Meanwhile all proceedings are stayed. If the creditors of the class of unsecured creditors and the class of secured creditors agree by a majority in number and two thirds in value then the proposal, if approved by the court, is carried out under meetings chaired by the licensed trustee. He or she will provide a certificate that the proposal has been fully performed when this has occurred. In the absence of agreement or if the proposal is subsequently annulled for some special reason, the insolvent becomes treated as a bankrupt who had assigned all property to the licensed trustee.
Might there not be a possibility to assist the two classes of bankrupt, those who have assigned all property to a licensed trustee appointed by the Supervisor (after receiving an assignment with a space to insert the trustee’s name) and those who have had a licensed trustee appointed receiver of their assets by the court at the behest of any creditors? Yes, a proposal may be put forward by the licensed trustee if a committee of inspectors appointed by the bankrupt’s creditors has approved it. The Supervisor and the court then become involved as for insolvents’ proposals, but the court’s approval annuls the bankruptcy.
It is to be hoped that there will be sufficient good licensed trustees and experienced judges to help the rehabilitation process work well.
Automatic discharge of bankrupts
While a bankrupt corporation may not apply for discharge unless it has satisfied its creditors in full, why not have financial counselling prescribed for individual bankrupts and why not have automatic discharge available for individual bankrupts, who had not before been made bankrupt?
The licensed trustee can within say, eight months of the bankruptcy, file a report on what has happened, copying it to the bankrupt, the Supervisor and the creditors. If no objection is made by any of them the bankrupt is automatically granted a discharge, say nine months after the bankruptcy.
In the case of objections the Court determines what is to happen and can impose conditions. It can, for example, refuse a discharge if the bankrupt’s assets were not of a value equal to 33 and a third cents on the dollar in respect of the unsecured liabilities or if he had acted recklessly or improperly.
Any statutory disqualification on account of bankruptcy will cease when the individual is discharged and obtains from the court a certificate to the effect that his or her bankruptcy was caused by misfortune not misconduct. After such misfortune, the bankrupt can walk tall in the community and, having learned from misfortune, can seek to make a fortune next time with the help of credit provided at not too high a price.
All this is designed to create a win-win situation for lenders, creditors, their employees and the country. The situation will be further improved by easier access to credit when the Eastern Caribbean Guarantee Corporation is established to encourage lenders by guaranteeing repayment of their loan to business people.
The OECS, CARICOM and insolvencies covering several States
In a small grouping of States like the OECS it makes obvious sense to strive for as much harmonisation of insolvency laws as possible, indeed covering cross-border insolvencies. Of course, this is a wider issue for CARICOM countries which can obtain much assistance from the well-established UNCITRAL framework for a Model Law on Cross-Border Insolvency based on the work of INSOL International supported by the World Bank. We do, after all, want to encourage foreign investment in the OECS.
The way ahead
It seems to me that the various stakeholders in the OECS States need to work with them via their Commission to produce a harmonised insolvency law that will enable the OECS States’ economies go further together.
Minister of Justice, Hon. Delroy Chuck, says the Government is looking at expanding its treatment services to offenders with substance-abuse problems, by establishing drug treatment courts in all parishes.The courts, which are currently operating in five parishes, provide an alternative to incarceration for drug-dependent offenders, where they benefit from treatment and rehabilitation under judicial supervision.
The Minister was addressing the opening of a three-day regional workshop on drug treatment courts at The Jamaica Pegasus hotel on 6 September 2017.
Mr. Chuck said an expansion of the programme will require collaboration with the Health Ministry and support from health practitioners in the private sector.
“The real challenge is to find more psychiatrists and psychologists making themselves available to participate in this programme. I will be speaking to my colleague Minister of Health to provide some additional resources, so we can use persons in the private sector, so that every parish can have at least one day per month to have a drug treatment court,” he said.
Mr. Chuck pointed out that the intention to expand the courts was prompted by a request from the parish court judges, who have recognised that when drug offenders come before them, “it’s not a jail term that they need, they need medical assistance and we are hoping that before long this can in fact be done”.
“The drug treatment court is one of the clear lessons how we can achieve change in an atmosphere of compassion and caring, encouraging and rewarding behaviour change while being firm when there are breaches,” he said.
The Minister argued that more resources must be diverted to projects such as the drug treatment courts to strengthen the infrastructure for therapeutic jurisprudence as an effective alternative to incarceration.
“It is evident that we need more than good policing, successful prosecution and lengthy jail time to heal individuals, families, communities and our countries. The Drug Treatment Programme strikes the right balance between holding individuals accountable and helping them to do better and be better humans,” he said.
According to the Organization of American States (OAS), treatment alternatives to incarceration can help break the cycle of criminal behaviour, alcohol and drug use, and imprisonment.
In various countries, drug treatment courts have proven to effectively reduce crime, relapse into drug use, the prison population, and they are also cost-effective.
In the meantime, State Minister for National Security, Senator the Hon. Pearnel Charles Jr., welcomed the regional approach to the drug-abuse issue, through the staging of the workshop, noting that it is “yet another step in the right direction” in tackling the problem.
“I’m so pleased to see that we are here having these discussions. We need to ensure that we continue to communicate to the country… so people can know where they can go to get assistance, and they can know that the system is contemplating these (alternatives), not just to lock up, but to make the smart decisions for our people,” he said.
Hosted by the General Secretariat of the Organization of American States (OAS), and the Government of Jamaica, the three-day workshop focuses on the expansion of drug treatment courts in the Caribbean.
The workshop is also intended to train experts from the health and justice sectors on drug treatment courts as an alternative to incarceration for drug offences for juveniles and adults.
It was organised by the National Council on Drug Abuse (NCDA), the Court Management Services, and the Executive Secretariat of the Inter-American Drug Abuse Control Commission (CICAD), with the support of the CARICOM Secretariat and the Government of Canada.
Delegates from Antigua and Barbuda, Barbados, Guyana, and Trinidad and Tobago were in attendance.
This story was reprinted with the kind courtesy of the Jamaica Information Service (www.jis.gov.jm)