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JUDGMENT
BACKGROUND
[1] The Applicant, a national of Barbados, was employed with the Caribbean
Centre for Development Administration (CARICAD) from 1990 until 2007. Her
services were terminated owing to redundancy according to a letter dated 4th
September, 2007 signed by the Executive Director, Jennifer Astaphan. From
September 2005 to September 2007 the Applicant had been on approved no-pay
study leave. Prior to her resumption of duties, about August 2007, she had
written to the Executive Director requesting details of the terms and
conditions of her employment, including her right to a pension, she having
been employed with CARICAD for seventeen years.
[2] Upon the applicant's return to work on September 3, 2007 she was
informed that her services were terminated forthwith. The Board of CARICAD
had decided to make her position as Head of the Administration Unit
redundant with immediate effect.
[3] On July 4, 2008 the Applicant sought special leave to proceed against
the Defendant CARICAD and Jennifer Astaphan alleging inter alia abuse of
power, wrongful dismissal, violation of the labour laws of Barbados, breach
of contract, and breach of the Constitution of Barbados. She also claimed
that she had been discriminated against on grounds of nationality, because
employees who were Barbados nationals were not afforded the pension rights
conferred upon employees who were nationals of other countries.
[4] On 25th August, 2008 an interlocutory application was filed by the
Proposed Defendants seeking an extension of time for filing a request to be
heard and an order that Ms. Astaphan be removed from the suit. On 7th
October, 2008 the Court granted the extension sought, ordered that Ms
Astaphan be removed as a party to the proceedings, and directed that the
following preliminary issues be tried before the hearing of the application
for special leave to commence proceedings:
(a) Can CARICAD be sued in the Caribbean Court of Justice?
(b) Which, if any, of the complaints made in these proceedings are
justiciable by the Court?
If the answer to the first issue is in the negative, then there will be no
need to consider the second issue.
FIRST ISSUE - CAN CARICAD BE SUED IN THE CCJ?
[5] This issue relates to the jurisdiction of the Court, and Article 216(2)
of the Revised Treaty of Chaguaramas ("the Treaty") provides that where a
dispute arises as to whether the Court has jurisdiction, the matter shall be
determined by the decision of the Court.
[6] It was contended by Counsel for the Applicant that this Court's
jurisdiction to hear and determine the Applicant's claims is based on the
fact that CARICAD is listed in Article 21 of the Treaty as one of the
Institutions of the Community; further, that being such an Institution,
CARICAD's legal personality and capacity to be sued are derived from Article
228 of the Treaty which accords the Community full juridical personality.
Counsel for the Applicant further submitted that Article 222 of the Treaty
gives this Court jurisdiction to hear this matter as the interests of
justice require that she be allowed to bring the claim irrespective of the
identity of the defendant.
[7] CARICAD is indeed named as an Institution of the Community in Article
21, being one of the entities established by or under its auspices, and is a
sub-centre of the Latin American Centre for Development Administration. It
has a Board of Directors which is the governing body charged with general
responsibility for its operations. The general objective of the Centre is to
render assistance to countries of the Caribbean for the purpose of improving
their administrative capabilities, and membership is open to those Caribbean
countries which signed and ratified the Agreement establishing it on March
13, 1979. Most of the Member States of the Community signed and ratified the
Agreement, but some did not.
[8] Article 10 of the Treaty provides that the principal Organs of the
Community are the Conference of Heads of Government and the Community
Council of Ministers. In performance of their functions the principal Organs
are assisted by the following Organs, namely: the Council for Finance and
Planning (COFAP), the Council for Trade and Economic Development (COTED),
the Council for Foreign and Community Relations (COFCOR) and the Council for
Human and Social Development (COHSOD). Subsequent articles of the Treaty
delineate the composition and functions of these Organs.
[9] Article 23 provides for the Secretariat to be the principal
administrative Organ of the Community with subsequent articles delineating
the functions of the Secretariat and the Secretary-General.
[10] Article 18 establishes Bodies of the Community, these being the Legal
Affairs Committee, the Budget Committee, and the Committee of Central Bank
Governors; in like manner their composition and functions are expressly
delineated.
[11] Significantly, the language used in Articles 10, 23 and 18 in
establishment of the Organs and Bodies of the Community is positive and
forthright: "The principal Organs of the Community are" (Article 10); "the
Secretariat shall be the principal administrative Organ" (Article 23); and "There
are hereby established as Bodies of the Community" (Article 18). When
contrasted with the language used in Article 21 in connection with the
Institutions of the Community, one can clearly discern that the Institutions
although within the Community System, were not intended to be an integral
part of the Community. Article 21 is worded in the following way:
"The following entities established by or under the auspices of the
Community shall be recognised as Institutions of the Community." (italics
added)
Article 22 provides for certain entities with which the Community enjoys
important functional relationships which contribute to the achievement of
the objectives of the Community to be recognised as Associate Institutions
of the Community.
[12] Institutions and Associate Institutions of the Community are not unlike
the specialised agencies of the United Nations which are not Organs of the
United Nations. Article 7 of the United Nations Charter stipulates that the
General Assembly, the Security Council, the Economic and Social Council,
Trusteeship Council, the International Court of Justice, and the Secretariat
are Organs of the United Nations. Specialised agencies are autonomous
intergovernmental agencies which contribute in their own way to the
achievement of the objectives and purposes of the United Nations. These
institutions form part of the United Nations System, but they are not an
integral part of the United Nations. Similarly, Institutions and Associate
Institutions of the Community are autonomous inter¬governmental entities
which contribute to the achievement of the objectives of the Community, but
are not an integral part of the Community.
[13] References are made throughout the Treaty to the roles and functions of
the Organs and Bodies of the Community: for example, Articles 47 and 49 of
Chapter Three on "Establishment, Services and Movement of Community
Nationals," Articles 57, 70, 74 and 77 of Chapter Four on "Policies for
Sectoral Development," and Article 187(c) of Chapter Nine on "Disputes
Settlement," to name a few. Attention is also directed to Article 240(1) of
the Treaty where it is provided that decisions of competent Organs are
subject to the relevant constitutional procedures of Member States before
creating rights and obligations for nationals of such States. Under Article
240(2) Member States undertake to act expeditiously to give effect to
decisions of competent Organs and Bodies in their municipal law.
[14] No reference is made in any of the articles of the Treaty to any role
to be played by the Institutions or Associate Institutions in implementing
the Treaty. Article 21 is the only article where reference is made to
Institutions. All of this leads inevitably to the conclusion that the
Institutions of the Community do not enjoy the same degree of identification
with the Community as do the Organs and Bodies. The policies and work of the
Community are effected through the Organs and Bodies of the Community. The
Organs and Bodies reflect the will of the Community. The Institutions and
Associate Institutions on the other hand are merely entities that have some
connection with the Community. Although recognised as entities working
within the CARICOM system they have no power actual or ostensible to bind or
represent the Community. Their acts and omissions are not necessarily
attributable to the Community as are the acts and omissions of the Organs
and Bodies.
[15] It is clear that the Community can be sued for the conduct of its
Organs and Bodies and that of the Secretary General[FN1]. It is equally
clear, however, that, for the reasons set out above, CARICAD, an Institution
of the Community, cannot be sued in proceedings before this Court. Moreover,
even if CARICAD were an Organ of the Community, it could not be made a
defendant in proceedings commenced in the Court as proceedings in respect of
its acts or omissions would have to be brought against the Community itself.
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[FN1] See also the Court's Judgment in TCL v. The Caribbean Community, Case
No. AR 3 of 2008 (2009) CCJ 2 (OJ) [5th February 2009]
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[16] The Court's jurisdiction in contentious proceedings is grounded in
Article 211 which confers on it compulsory and exclusive jurisdiction to
hear and determine disputes concerning the interpretation and application of
the Treaty. This includes (apart from disputes between Member States,
disputes between Member States and the Community and referrals from national
courts) applications by persons in accordance with Article 222. Article 222
is concerned with specifying the circumstances in which a person can bring a
claim before the Court. It does not speak to the question of who may be a
competent defendant and it is therefore not relevant to the issue whether
CARICAD can be sued in this Court.
[17] For all these reasons the Court holds that actions against CARICAD
cannot be commenced in this Court.
[18] Although the legal personality of CARICAD was not raised as a
preliminary issue, important legal consequences may arise depending on
whether CARICAD is a legal entity on the municipal or international plane
e.g. with regard to its capacity to conclude treaties or to sue or be sued
in municipal courts. This, however, is an issue on which this Court need not
pronounce for the purposes of these proceedings, except in so far as we hold
that CARICAD cannot derive its legal personality from that conferred upon
the Community by Article 228 of the Treaty.
SECOND ISSUE - JUSTICIABILITY OF APPLICANT'S CLAIM
[19] It was stated earlier at [4] that if the answer to the first issue was
that CARICAD could not be sued in this Court, then there would be no need to
consider the second issue which concerns justiciability of the Applicant's
claims. The Court, however, is constrained to point out that the issues in
this case of wrongful dismissal, breach of contract and breach of the
Constitution or labour laws of Barbados are not justiciable in this Court.
Although the Court is competent to interpret and apply Article 7 of the
Treaty which prohibits discrimination on grounds of nationality only, there
is no question of it doing so in this matter since, as the Court has held,
proceedings against CARICAD cannot be initiated in this Court.
[20] For all of the reasons discussed above the Applicant's application is
dismissed. There will be no order as to costs. |
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