CARICOM to U.S. Courts: You’re putting the C.C.J’s legitimacy at risk!

  • Decisions that snub CCJ opinions undermine its legitimacy and impede aspirations for independence and regional cohesion.
  • Allowing CCJ opinions to be circumvented has the deleterious effect of weakening the value of the CCJ as an institution.
  • “Further efforts to utilise the CCJ in strengthening the governance of its Member States and to expand the CCJ’s final appellate jurisdiction will be hindered if import decisions by the CCJ that go directly to the rule of law and support essential tenets of democracy are summarily disregarded by courts of other jurisdictions in the international community.”—CARICOM Secretary General Irwin LaRoque.

Should the United States’ Courts be able to override decisions made by the highest appellate Court in the Caribbean region, The Caribbean Court of Justice (CCJ)? That’s the question that has been brought, once again, to the fore, of late, in large part due to the latest developments in the Belize government’s case against entities such as BCB Holdings Limited, Belize Social Development Limited, and NEWCO.

Given that the case themselves have been reported on in the Belize media, this article will not rehash those finer details, but rather look more closely at the positions of support that have been articulated last year by both the CARICOM Secretary-General Ambassador Irwin LaRoque, and the Government Guyana.

Any avid news consumer would, at this point, be painfully aware that the United States Supreme Court recently decided to uphold the London International Court of Arbitration (LICA)’s decision regarding the accumulative US$50 million arbitral awards to NEWCO, BCB Holdings Limited, and Belize Social Development Limited (BSDL). However, probably even more intriguing is the Government of Belize’s official response that effectively said it is not going to pay!

GoB’s release stated: “The Office of the Prime Minister makes clear that while the US courts have upheld the awards, those courts have no authority to overrule the CCJ and certainly the Ashcroft companies can never collect on those awards in Belize. Accordingly, the Government of Belize …refuses to subject the Belize people to this monstrosity….and has no intention of paying a penny of these Ashcroft [referencing Michael Ashcroft’s ownership of BCB Holdings and BSDL] awards.”

Now, those who’ve seen the release in its entirety would notice the excerpt above is void of the more politically charged elements. That was done intentionally, as the objective of this article is to discuss a beyond-Belize-politics potential ramification that is encapsulated in Ambassador LaRoque’s and the Guyanese government’s support of Belize (more precisely the CCJ) in this matter.

Writ of Certiorari

CARICOM’s intervention came by way of its support for the Government of Belize’s petition for Writ of Certiorari. Ambassador LaRoque, in the opening paragraph of his April 5, 2016, letter to the US’s Solicitor General, wrote:

“I am the Secretary-General of CARICOM, the Caribbean Community of Sovereign States, which includes 15 Member States. I am writing to you because I have been informed by the Prime Minister of Belize of that Government’s pending petition for a writ of certiorari before the United States Supreme Court. …This is an important matter to CARICOM because the case implicates international comity considerations with respect to the Caribbean Court of Justice (CCJ), and the fundamental rule of law with respect to one of its Member States, Belize”.

To be clear, the term “international comity”, according Duhaime’s Law Dictionary, speaks of a “principle of international law, that one state, to the greatest extent possible, recognizes the legislative, executive or judicial acts of another”.

Immediately, one can see that the CARICOM Secretary General had called into question whether or not the United States’ Supreme Court has right to involve itself in a matter on which the highest appellate court in the Caribbean region—the Caribbean Court of Justice—had already ruled.

Hurting the CCJ’s Legitimacy

In his letter, LaRoque elucidated the risks involved if the US Supreme Court sought to ignore the CCJ’s decisions.

“CARICOM has recognized, as part of its ongoing Strategic Plan, that ‘special attention should be given [to] the role of the CCJ in strengthening and optimizing the governance arrangements’ of its Member States,” He said. “Further efforts to utilize the CCJ in strengthening the governance of its Member States and to expand the CCJ’s final appellate jurisdiction will be hindered if important decisions by the CCJ that go directly to the rule of law and support essential tenets of democracy are summarily disregarded by courts of OTHER JURISDICTIONS in the international community” (emphasis added).

He also reminded that as far as Belize is concerned—that is, being one of the countries that have accepted the CCJ as its highest court—“the CCJ completes the circle of judicial sovereignty for nations like Belize.” The other countries that have acceded to the CCJ in this light are Guyana, Barbados and Dominica.

The point that LaRoque argues is interesting on several precedent-setting levels, because, after the parties had lost against the Government of Belize in Belize’s courts, the matter was taken before the CCJ. It was at this stage that the CCJ “renounced the enforcement of the arbitral award”.

More specifically, the court found the agreements between the then government and BCB Holdings Limited to be “repugnant to the established legal order of Belize.” The CCJ had also found the arrangements to be “unconstitutional, void and completely contrary to public policy”.

In its judgment, the CCJ also made the point that if it did order Belize to honor the LCIA’s decision, it would “effectively be rewarding corporate citizens for participating in the violation of the fundamental law of Belize and punishing the State [Belize] for refusing to acquiesce in that violation”. Those are powerful words uttered by the CCJ in the Government and People of Belize’s favor.

Additionally, and probably most important to this matter, the CCJ had ruled that no Court could properly enforce the arbitral award. However, as LaRoque argued, the US Supreme Court’s decision to overlook or simply ignore even that declaration effectively serves to weaken and undermine authority of the CCJ and places the entire integrated legal structures that CARICOM has been working towards at risk.

“International comity, as well as the United States’ shared concerns for separation of powers and democratic order, and against political corruption, compels greater RESPECT and consideration for the decisions of the HIGHEST COURT among the 15 Member Sovereign States in the Caribbean Community than the CCJ has been afforded thus far in this case,” he said. “This case presents a fork in the road in terms of the future relations among the courts of our respective jurisdictions. Deference should be accorded to the CCJ’s reasoned decision given its critical importance to the Caribbean Region, so as not to risk impugning the legitimacy of the CCJ” (Emphasis Added).

Enter Guyana

Now, LaRoque was not the only party to chime in on this matter last year. In its Amicus Curiae Brief on the matter, the Government of Guyana raised similar concerns regarding the potential illegitimating of the CCJ’s powers.

Guyana reminded: “Like several other Caribbean nations that formerly were British colonies, both Belize and Guyana have made the CCJ their highest court, replacing the Privy Council. Accordingly, Guyana has a vital interest in the respect paid to the CCJ on the international stage and the comity accorded CCJ opinions by other courts.”

The Guyanese Government proceeded to explain their stake in the matter. “Guyana, of course, has no direct role or interest in the specific monetary dispute between Belize and BCB Holdings. But Guyana could very well find itself in a position similar to Belize’s in future litigation, i.e., having a CCJ decision circumvented by an American court.”

At issue, the Government of Guyana explained, is whether or not “American courts will honor CCJ opinions, especially when they conflict with rulings emanating from former colonizing powers [referencing the LCIA in this matter]”. Continuing on this motif, they added:

“A court’s power lies in the confidence that litigants have in the potency of its decisions. Allowing CCJ opinions to be circumvented has the DELETERIOUS effect of weakening the value of the CCJ as an institution. In short, recognition of CCJ opinions by American courts will bolster movements to accede to CCJ appellate jurisdiction. Conversely, decisions such as the D.C. Circuit’s that reject the CCJ’s authority, damage the CCJ’s reputation and undermine its present and future operations to the detriment of the entire Caribbean region.”

 

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s