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Commentary: Cabral Douglas v Dominica
Published on April 22, 2017Email To Friend    Print Version

By Jeffrey H. Foreman

Cabral Douglas v The Commonwealth of Dominica [2017] CCJ 1 OJ

The Caribbean Court of Justice (CCJ) in its capacity as an international tribunal with sole authority for interpreting and applying the Revised Treaty of Chaguaramas (RTC) recently denied an application by Cabral Douglas for leave to commence proceedings against the Commonwealth of Dominica. Douglas is a native of Dominica and the owner of an entertainment business in that island. He claims that Dominica breached the RTC when it denied Tommy Lee and his entourage entry into that country. The denial of entry caused a concert organized by Douglas being cancelled, resulting in him incurring loss for which, he claimed, Dominica was liable to pay compensation.

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Jeffrey H. Foreman is an attorney-at-law practicing in Jamaica
Douglas is understandably disappointed by the result; anyone on his side of such a case would be. Immediately after the decision was handed down he publicly criticized it and has now taken matters further by writing to the Regional Judicial and Legal Services Commission (RJLSC) complaining of a number of ‘procedural irregularities’ which, in his view, should cause the decision to be set aside. I am not aware of any power in the RJLSC to interfere in the judicial work of the CCJ in either its original or appellate jurisdictions. It therefore remains to be seen what will come of this attempt.

In this article I comment on two of Douglas’ complaints. The first is that the decision to deny his application was wrong in law. The second is that the decision will have an adverse impact on the development of the CARICOM Single Market and Economy (CSME).

The case itself

Individuals do not have an automatic right to appear before the CCJ in its original jurisdiction. To have standing before the court four conditions must be satisfied. These requirements are set out in Article 222 (Locus Standi of Private Entities). The first is that it must be established that a right or benefit conferred under the treaty on a member state “enure[s] to the benefit of such persons directly” (Article 222(a)).

Shanique Myrie and Maurice Tomlinson were able to satisfy this criterion because in their respective cases they relied on the right of freedom of movement of CARICOM nationals granted under the RTC and the 2007 conference decision of the CARICOM heads of government conference. Those provisions expressly created a right intended to benefit individuals wishing to travel throughout the region for various reasons.

As the court noted in Trinidad Cement Limited (TCL) v Guyana, not all rights or benefits conferred on member states are expressly intended to benefit individuals. In this case TCL alleged that Guyana breached its obligation to maintain the common external tariff (CET) on cement imported into the region, thereby depriving it of a benefit. The CCJ used the opportunity of that case to elaborate on the concept of rights benefitting “such persons directly” by indicating that obligations placed on member states can create “correlative rights” for individuals (or companies). Thus, the obligation on Guyana to implement and maintain the CET created a potential benefit that enured directly to TCL as a company involved in the production, packaging, sale, and distribution of cement in the region.

Article 222(a) proved a stumbling block for Douglas. In his application before the CCJ he indicated that he entered into an agreement with a Jamaican management firm to secure Tommy Lee’s performance in Dominica. This was done out of reliance on several articles of the RTC, which he argued were intended to provide a benefit to him as the organizer of the concert.

Since Douglas’ complaints in relation to the decision of the CCJ center on its reasoning on Article 36, I will focus solely on that aspect of the case.

Article 36 is titled ‘Prohibition of New Restrictions on the Provision of Services’. This article in substance gives the right to provide services throughout the region. Douglas, to obtain special leave on this point, had to make out an arguable case that Article 36 conferred a right or benefit on Dominica that enured to him directly.

Provider of Services

Like other rights under the RTC, the right to provide services is subject to certain conditions. To be considered a ‘service’ within the meaning of Article 36 the service should:

1. fall within an ‘approved activity’ within an ‘approved sector’;
2. be temporary;
3. ‘provided against remuneration other than wages’; and
4. be supplied cross-border

The CCJ concluded that Douglas was not a provider of services within the meaning of Article 36 because, among other things, he was not supplying ‘cross-border’ services. The RTC contemplates four different modes of providing services across borders. The mode relevant to Douglas is found in Article 36(4)(d): the supply of services “by a service supplier of one member state through the presence of natural persons of a member state in the territory of another member state”.

The CCJ interpreted this provision and the need for the host member state to provide the service “under the same conditions enjoyed by nationals of the member state” (Article 36(2)) as precluding the possibility of a service supplier, being a national of the country in which the service is being delivered, falling within the scope of the Article.

By way of contrast, explained the court, if the case was brought by Tommy Lee he would be considered the service provider because: “he and his support staff…were entertainment services suppliers of one member state (Jamaica) through the presence of natural persons ([Tommy Lee] and his party) in the territory of another member state (the Commonwealth of Dominica)”.

If Douglas was not the provider of services within the meaning of Article 36 there could be no right or benefit enuring to him directly on that basis.

Recipient of services

The CCJ then considered the argument of correlative rights. Could the obligation placed on State A to allow nationals of State B to provide services in State A create a correlative right enuring directly to nationals of State A?

The court concluded that there was a correlative right; the right to receive such services.

The CCJ however determined that Douglas had no correlative right to receive the services of Tommy Lee because his case as pleaded did not indicate that he was the recipient of the entertainment services. The court here may be referring to the emphasis placed on the fact that Douglas contracted with a company “for the appearance of” Tommy Lee at the concert to enable Douglas to then provide a service to consumers in Dominica not for him (Douglas) to receive that service himself.

Further still, the court reasoned, even if it could be said that Douglas was the recipient of the service, his ability to benefit from it “did not accrue to him directly” but was “contingent on the lawful entry into Dominica of [Tommy Lee] and his entourage”.

The general principle here appears to be that the correlative right to receive services for the purpose of satisfying Article 222(a) does not include a method of service delivery contingent on the exercise by the service provider of any right under the treaty.

Consistency

In so far as the CCJ, in arriving at its decision, felt itself constrained to give effect to the actual words of the RTC and not come to a conclusion disconnected from the document’s clear meaning, it acted consistently with its previous rulings. Prior to the decision in Douglas the court has declined jurisdiction to allow proceedings to be brought against entities that the RTC does not designate as competent defendants (Johnson v CARICAD). The court also declined jurisdiction to adjudicate international human rights treaties and conventions on the basis that its constituent instruments required it to interpret and apply only the provisions of the RTC and “’secondary’ legislation emanating from the treaty” (Myrie v Barbados). In sum, words matter.

Whither enforcement of the CSME?

The second aspect of Douglas’ complaint with the CCJ’s decision that I wish to address is the contention that it “creates a serious problem for the implementation of the CARICOM Single Market and Economy (CSME)” because conference decisions will not be enforced “when it’s not politically expedient to do so”. It is not clear what Douglas means by political expediency. Nevertheless, I do not share his view about the CSME.

In the first place the CCJ through its original jurisdiction decisions has regularly declared member states in breach of their treaty obligations once such issue is properly before it for adjudication. To their credit, member states do comply with rulings of the court notwithstanding its status in this context as an international tribunal. The most recent example of this is Guyana, where its parliament changed a law after the CCJ declared it to be inconsistent with the RTC. The refusal of Douglas’ application is unlikely to disrupt this ‘habit of compliance’.

Secondly, where cases involving ‘indirect’ rights under the RTC are in issue, and an individual cannot approach the CCJ directly, he may approach his national court. The court highlighted this possibility in its judgment in the Douglas case, where it suggested that the failure of an individual to satisfy the requirements for leave under Article 222 does not exclude the possibility of bringing proceedings before the local courts.

The CCJ did not say on what basis this could be done. In my view such proceedings are possible because of the existence of the Caribbean Community Act of Dominica which makes the provisions of the RTC part and parcel of the domestic law of that country. By virtue of this Act the government of Dominica has an obligation to: (i) take all appropriate measures to ensure the carrying out of its obligations arising out of the RTC; (ii) facilitate the achievement of the objectives of the Caribbean Community; and (iii) abstain from measures which could jeopardize the attainment of the objectives of the RTC.

Where an allegation of breach of those obligations are brought before the local courts of Dominica, the courts are required “to do whatever lies within their jurisdiction, having regard to the whole body of rules of national law, to ensure that the [RTC] is fully effective” (an obligation which the CCJ referred to in its decision in Tomlinson v Belize and Trinidad and Tobago). If in so acting the local court determines that it requires clarification of either the meaning or application of the RTC to the case before it, a reference can be made to the CCJ pursuant to Article 214 of the treaty.

There is therefore a forum for Douglas (or any other CARICOM national) to have the substantive arguments regarding any alleged breach by Dominica (or any other state party to the CSME) of treaty obligations adjudicated in a court of law.

The real problem

Whether Douglas pursues his case before the courts of Dominica or not there is another potential stumbling block with which he will have to contend.

It has been reported that Tommy Lee himself sought compensation from the government of Dominica for denial of his right of entry. If that approach resulted in a resolution of the issues between Tommy Lee and Dominica it is difficult to see how Douglas could ultimately succeed given the need to establish that there was in fact an unlawful denial of entry. This would have been a problem for him even if the proceedings could be heard by the CCJ in its original jurisdiction.

Final thoughts

As the CCJ decides more cases in its original jurisdiction and more persons become aware of their rights under the RTC it is expected that the court’s case load will increase. However, as the decision in Douglas makes clear not all issues touching and concerning the RTC will be adjudicated by the CCJ in its original jurisdiction. Some matters will be addressed by the CCJ “indirectly” through the local courts. This process will enhance the CSME through clarification of the law and its application in different contexts.
 
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Comments:

Anthony W Astaphan:

Dear Jeffrey,

Very well written.

Cabral knows better. He cherrypicked one or two photographs or matters to launch an unwarranted attack against the President and CCJ. The first photograph concerned a public ceremony in Dominica when our country decided to accede to the CCJ. The entire court was present. The second concerns the meeting of the Heads of Government in Guyana. It is common practice for the Chief justice of the OECS Court to meet with Heads on occassion. The same must apply to the CCJ as it is the region's final court of appeal(or ought to be).

In my view, these meetings gave rise to the ridiculous charge of bias for a very simple reason. Many among us have sought to vilify the CCJ on the spurious grounds of partisan politics, and the insidious neo-colonial attitude that only the Londonders can give us justice; a most regretable and pathetic attitude.

Permit me to give one of multiple example of this partisanship. The United Workers Party of Saint Lucia when last in Government agreed to accede to the CCJ. They lost the election. Dr Kenny Anthony's Government thereafter decided to move towards the CCJ in accordance with the previous Cabinet decision. Guess what?? The United Workers Party flipped flopped and sent a battery of attorneys to the Court opf Appeal to oppose the move. Every political party in opposition in the OECS if not CARICOM has played this very foolish and backward game. Indeed, there has been no will or ability to drive home consensus on the historical importance of our own final court of appeal, and even in Caricom States where the Prime Minister in substance selects the Chief Justice. Cabral is just the latest to jump on the band wagon because he lost.

As Caribbean people we speak of freedom, Pan Africanism, Reparations, total liberation, a new civilisation etc etc. All good. But when it comes to the very part of our liberation and nationalism yet to be achieved (the CCJ), so many hide behind and exploit the mental slavery that the Great Bob Marley sang so eloquently about. Consequently, so long as partisan politicians, and the likes of Cabral, are allowed full sway, mental slavery will be with us for a long time. So as a regionalist, I thank you for your commentary.

Best regards


Cabral Douglas BA, LL.B:

Anthony Astaphan SC has represented several governments in the region, has appeared before the CCJ, and is one of the best and brightest Senior Counsel's in the Caribbean.

As such, he certainly knows or ought to know and understand the legal requirement for establishing bias/political interference sufficient to overturn a courts decision, the central issue of my appeal to (RJLSC), which Jeffery conveniently ignores in his commentary.

The legal requirement, which has been adopted throughout the Commonwealth as early as 1924 in R v Sussex Justices Ex McCarthy 1924] 1 KB 256, [1923] All ER , and R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (2) [1998] UKHL 41; 3 W.L.R. 1456 (H.L. 1998) is very clear.

Indeed the CCJ themselves set out their own guidelines in a recent appeals case involving Timothy Walsh of Nature’s Produce Inc., plantation owner Stephen Ward and real estate and construction businessman, Bjorn Bjerkham.

In this decision, the same CCJ, presided over by none other then Sir Dennis Byron emphasised that judges must never be in a position for their impartiality to be questioned stated the following:

"What matters is not so much the reality of bias or prejudice on the part of the judge but its appearance."

The dictum was echoed on McCarthy when Lord Chief Justice Hewart stated: "Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice."

Finally in R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet (2)[1998] UKHL 41; 3 W.L.R. 1456 (H.L. 1998) the House of Lords has to overturn its very own decision the grounds of the mere possibility of bias.

This brings me to Cabral Douglas v The Commonwealth of Dominica.

Senior Counsel Astaphan knows very well that when a court "reserves" judgement, it has up to six months to deliver its judgement.

According to the media statement issued by the CCJ, denying corruption allegations, the President of the (RJLSC) who also happens to be the President of the CCJ, an obvious conflict of interest, is required to present to the plenary as an " institutional function".

So with this being the case, why would the court choose to convene on a day when you know that 2 of the 5 Justices presiding over the matter are not available to deliver their own judgement in their own court?

Incidentally in addition to Byron’s absence, Justice Saunders also was not present in court.

Where was Justice Saunders? Could it be that Justice Saunders did not support the corruption? In the face of it would appear that way, when one considers what he had to say at a recent lecture on the question of the Locus Standi of private entities:

“Each time the treaty imposes an obligation on a state, ANY INDIVIDUAL who can benefit from the implementation of that obligation has a right to the fruits, the following through with the implementation of that obligation…”

The next question is: Where was Sir Dennis Byron? Indeed it was uncovered that the reason why Sir Dennis Byron was not available to attend his own court to deliver his decision is because he was busy meeting with the Defendant Prime Minister, Roosevelt Skerrit in Guyana, and was boldface enough to announce that his court had reached a decision whilst in the presence of the Defendant Prime Minister!

If this does not present the appearance of bias/political interference then I do not know what does. This is the same court, which has campaigned throughout the region to replace the Privy Council as the regions final court of appeal on the basis that it is credible, competent and free from political interference. Can anyone even imagine the Privy Council finding themselves involved in such shenanigans? I have never seen any court anywhere involved in this level of shenanigians.

If Sir Dennis Byron is asking Caribbean countries to delink from a century old credible institution of justice like the Privy Council in favour of the CCJ, on the premise that the CCJ is a credible court, then I think it would be reasonable to expect him to start conducting the affairs of the court at a standard that his been adopted by all other credible courts throughout the world.

So it is on this basis, as a proud black man supportive of regionalism in principal, I reiterate my call for Sir Dennis Byron to resign as the President of the (RJLSC) pending the outcome of the investigation, and for the decision against me to be overturned on the basis of what is clearly political interference/bias as described in the legal criteria outlined above, and adopted throughout the Commonwealth and by the CCJ themselves.

Cabral Douglas BA, LL.B

Anthony W Astaphan:

Thank you for the compliment Cabral but I still think you are dead wrong. There is absolutely nothing you have referred to or on record to suggest bias, the appearance of bias or any wrong doing on the part of the President of the CCJ. Consequently, I think your demand that the President resign is unwarranted and indeed outragrous. You were not granted leave under the orioginal jurisdiction of the court for a simple reason; your claim under the Revised Treay of Chaguaramas was hopeless. I admire the fact that you tried, but you failed, and in my respectful view, you failed for a very good reason. I also have no doubt that had you been granted leave by the CCJ, your position would be very different than it is today. I will leave it there.

Cabral Douglas BA, LL.B:

Tony

In this current era of defamation suits flying left, right and centre, I would hate to misquote you, so please do correct me if I have ascribed any statement to you which is not accurate.

Having said that, I do find it's quite extraordinary that a leading Senior Counsel in the Caribbean is suggesting to the world that:

A) It is proper for a sitting judge to be meeting and communicating with a party to a judicial proceeding while the matter is in progress.

B) It is proper for a sitting judge to announce that his court has come to a decision in favour of the defendant while in the presence of the defendant Prime Minister in these very proceedings.

C) It is proper for a sitting judge to convene his court in his absence while he his in the presence of the Defendant, Prime Minister at a meeting.

D) Holding the office of President of both the CCJ and the RJLSC does not constitute a conflict of interest, and a violation of the rules of natural justice, in light of the corruption allegations lodged with the Commission against Byron in his capacity as President of the CCJ.

Again Tony, please do confirm that your views have been accurately represented above because I would hate to misquote you.

In the meantime as I await the publication of the Commissions findings, I will use this opportunity to restate my demand for the immediate resignation of Sir Dennis Byron from the Regional Judicial and Legal Services Commission in order to preserve the integrity of the court, and to maintain the rules of natural justice in the adjudication of this matter.


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