Robert Buddan, Contributor
THE JAMAICA Labour Party (JLP) has filed an action in court to determine the constitutionality of the CCJ. It seems to me that the real debate on the CCJ should be over freedom, including the freedom of trade. The CCJ will permit persons to conduct trade regionally by giving the CARICOM charter the legal support it needs to interpret the Charter and the rights and duties of those engaged in Caribbean Community (CARICOM) relations. Those rights will be restricted if a country cannot be a party to the CCJ.
Freedom of speech, movement, assembly and association are as much about economic freedom as it is about political freedom. A businessperson cannot enjoy the full potential of his business if he cannot enjoy freedom of speech to talk and write about his product; enjoy freedom of movement to transport his product about; enjoy freedom of assembly by which he can assemble people in a factory to produce the product; and enjoy freedom of association to form an association of producers to promote the business interests of those producers.
REGIONALISM AND FREEDOM
A single market and economy removes barriers between nations so that a region of countries can enjoy free and equal treatment among them. The people of CARICOM will be able to enjoy greater freedom across the region to trade, invest, work and study. The Caribbean Court of Justice is a necessary complement to regionalism because the Court is necessary to interpret the rights and duties of people according to one standard so that there is no national discrimination. This is the same role that the European Court of Justice plays in the single market and economy of Europe and the same function that the United States Supreme Court plays in the single market and economy of the U.S.
The Commonwealth Caribbean has traditionally meant that part of the British Commonwealth which is the English-speaking Caribbean. But the Single Market and Economy (SME) and CCJ will make us a Caribbean Commonwealth on our own terms. They will allow us to actually share in our common wealth and create our common destiny. They will allow us to extend our sphere of freedoms from the national to the regional. It seems logical, for example, for those who are and have been a part of the regional university community to enjoy the rights of regional citizenship.
In this sense, it is logical for those who are parts of regional press, human rights and other associations to be able to move and speak freely across the region. It makes natural sense for companies listed on regional stock exchanges to be able to do business freely in the region. It is necessary for companies like Grace, Kennedy and others extending themselves in the region to be able to have a court through which they can ensure equal treatment. It seems right that Jamaicans who marry Trinidadians, Barbadians, Guyanese, etc., etc., should have freedom of movement and the right to do business across the countries from which they have a shared family. It makes sense for all of us to be able to move across the region to watch the coming cricket World Cup matches with a regional court to protect our rights.
In fact, it is necessary for our companies to have the confidence to expand deeper into the region for them to have a court to turn to if their rights are infringed. The recent example of a claim being made about the conditions by which Mr. Lee-Chin acquired ownership in a Trinidadian company shows the importance of having a body through which judicial settlement of disputes can be achieved when this becomes necessary.
THE WEST INDIAN COMMISSION: CONSULTATION OR REFERENDUM
CARICOM established a West Indian Commission which reported in 1992 on the need for a Caribbean court. The case it made then is even more compelling now since we are so close to a single market and economy. It said, "Integration in its broadest economic sense involving a Single CARICOM Market, monetary union, the movement of capital and labour and goods, and functional co-operation in a multiplicity of fields must have the underpinnings of Community law. Integration rests on rights and duties; it requires the support of the rule of law applied regionally and uniformly. A CARICOM Supreme Court interpreting the Treaty of Chaguaramas, resolving disputes arising under it, including disputes between Governments parties to the Treaty, declaring and enforcing Community law, interpreting the Charter of Civil Society all by way of the exercise of an original jurisdiction is absolutely essential to the integration process. It represents in our recommendation one of the pillars of the CARICOM structure of unity."
There are three particular points that are important in the context of the JLP's opposition to the CCJ. The West Indian Commission was established on the basis of an agreement by CARICOM Heads of Government in 1988, that is, with the agreement of the JLP Government of the time. The second point is that, although the JLP is asking for a referendum on the CCJ, CARICOM had embarked on a region-wide consultation and it was this consultation that formed the basis for its 1992 report and the recommendation for a regional court.
The consultation was probably more democratic in the sense that it was held across the region and in many parts of Jamaica. It was more than a 'yes/no' vote. It involved deliberation by which people could raise, debate and agree in town hall-style democratic deliberation. Having satisfied the democratic requirement, we should have sympathy for the Commission's Report that, "We cannot, like characters in a Chekhov play, go on sitting around tables forever discussing the pros and cons of action and in the process forever deferring it".
The third point takes us back to freedoms. Since the SME and CCJ extend our sphere of freedom to live, work, study and bond, our commitment to the CCJ should be a part of our constitution. It is more than curious that the JLP is, in contrast, challenging the constitutionality of our membership in the CCJ. In fact, organisations like Jamaicans for Justice and all civil and human rights and business organisations should demand that this more extensive sphere of rights and freedoms be made a part of the constitution. National insularity has no place under regionalism and globalisation. I go as far as to suggest that any attempt at blocking the CCJ should be challenged as a violation of the rights and freedoms of Jamaicans. For instance, the business sector should be able to challenge any charge of unconstitutionality of the CCJ on the grounds of restriction or prohibition of the right of trade.
FREEDOM AND REGIONALISM IN LAW
One European scholar says that it is not enough to subscribe to international agreements. Rather, societies should constitutionalise regional rights and freedoms so that they can be enforced by domestic law. This is because, "national guarantees of freedom of foreign trade enlarge and protect the individual freedoms, property rights and non-discrimination of domestic citizens across national frontiers."
This scholar goes on to argue that in the modern world of integration, international integration law becomes no less important for ordinary citizens than national legislation. Freedom of trade within federal states and the EU are widely seen as constitutional achievements. In the age of integration, the five freedoms for goods, services, persons, capital and payments need constitutional backing and the failure to provide this could well be argued as a restriction on trade. The rights-based approaches to constitutions suggest that individuals can enforce rights against governments, including transnational rights.
The liberty to produce and distribute goods and services are protected under the due process clauses of the American constitution. In fact, the Americans say no person shall be deprived of "life, liberty or property without the due process of law". Jamaicans cannot enjoy life, liberty and property in the SME if there is no CCJ to ensure due process of law.
Freedom of trade and industry has a long history of recognition in constitutional law in Europe. The European Court of Justice holds that: "... the principle of free movement of goods and freedom of competition, together with freedom of trade as a fundamental right, are general principles of law of which the Court ensures observance."
Any challenge to the CCJ is a challenge to our basic rights and freedoms to exist in our natural Caribbean Community.
Robert Buddan lectures in the Department of Government, UWI, Mona. E-Mail: Robert.Buddan@uwimona.edu.jm
