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REASONS FOR DECISION
[1] On August 20, 2009 this Court declared that since October 2006 the
Defendant, the Co-operative Republic of Guyana, had been in breach of the
provisions of Article 82 of the Revised Treaty of Chaguaramas ("the RTC") by
failing to implement and maintain the Common External Tariff ("CET"). The
Court ordered that within 28 days of the date of its order Guyana must
implement and thereafter maintain the CET in respect of cement from
non-CARICOM sources. This Court recognized that, notwithstanding a
re-imposition of the CET, Guyana had the right under the RTC to seek
approval for a suspension of the CET by application to the Council for Trade
and Economic Development ("COTED") or, during the interval between COTED
meetings, to the Secretary-General, pursuant to Article 83(2) and (3) of the
RTC. Thus the order was made "without prejudice" to that right. Both parties
were given liberty to apply to the Court in respect of matters arising out
of the mandatory order to implement and maintain the CET within 28 days.
[2] The Defendant by an application dated September 22, 2009 sought the
following orders: (a) a stay of execution of the order of August 20, 2009
(b) alternatively, an extension of time for compliance with that order and/or
a variation thereof.
[3] In response the Claimants, Trinidad Cement Limited and TCL Guyana
Incorporated, filed a Reply which invited the Court to refuse to hear the
Defendant's application or to dismiss it on the ground that the Defendant
was in contempt of the Court's order. In the alternative, the Claimants
sought an order postponing the hearing of the Defendant's application of
September 22, 2009 until the hearing and determination of the Claimants'
application dated and filed on October 6, 2009 for orders declaring that the
Honourable Attorney-General of Guyana was in contempt of court in failing "to
implement and give effect" to the order of August 20, 2009 (hereinafter
referred to as "the Order").
[4] The Court invited counsel for Guyana to respond to the objections of the
Claimants. Counsel for Guyana pointed out that Guyana had approached the
Court on September 16, 2009, a day before the time for compliance had
expired, by way of a motion. Upon being informed that the procedure adopted
was not in accordance with the Caribbean Court of Justice (Original
Jurisdiction) Rules 2006 the application was withdrawn and replaced by the
present application filed on September 23, 2009. The application was made
pursuant to the "liberty to apply" clause.
[5] Counsel for the Claimants objected that Guyana had consistently defied
all requests to re-impose the CET in accordance with its obligations under
the RTC and followed that up with refusal to obey the Order.
[6] While there is great force in the submission of counsel for the
Claimants, refusal to hear a party – even a party in contempt – or dismissal
of a party's application without a hearing is a draconian remedy and a
recourse of last resort. The Court always has a discretion to hear even a
party in contempt. In the instant case the Defendant approached the Court
before the time for compliance expired under the "liberty to apply" clause.
Again, a court should not countenance an absolute denial of access to it, as
contended for by counsel for the Claimants. The Court therefore heard
counsel for Guyana on its application.
[7] Although Guyana claimed a stay of execution, execution is not a matter
for this Court. Guyana's intention must have been to seek a stay of
proceedings or an extension of the time for compliance with the Order to
re-impose the CET.
[8] The basis of Guyana's application was that it had applied for a waiver
of the CET since June 30, 2009 in accordance with Article 83 of the RTC. It
was alleged that if the CET were re-imposed within the time fixed by the
Order, severe financial hardship would befall "importers of cement" who had
placed orders before the date of the Court's Order but had not yet received
their goods. Further, the Defendant averred that the macro-economic
stability of Guyana would be adversely affected if the CET were re-imposed
in accordance with the Court's Order.
[9] The nature of the relief sought suggests that the Defendant failed to
appreciate that this Court made a peremptory order for reinstatement of the
CET. The Court was forced to make such an order in a situation where counsel
for Guyana admitted that his client had breached the provisions of the RTC,
but nonetheless had no instructions to give an undertaking to the Court that
Guyana would uphold the law and its treaty obligations. In recognizing that
the RTC permitted an application for authorization to suspend the CET, the
Court was in no way qualifying its Order to reinstate the CET within the
jurisdiction of Guyana within 28 days. Guyana clearly was not entitled to do
nothing to re-impose the CET in obedience of the Court's Order in the hope
that its application to COTED for a suspension would be successful. In any
case, no evidence was provided to suggest that COTED was likely to grant a
suspension or when it would do so. In the Court's view, the Defendant's
reliance on its application or applications for authorization to suspend the
CET was misconceived.
[10] In any event, counsel for Guyana seemed to be contending for an
open-ended extension of the time for compliance with the Court's Order.
Counsel was unable to say definitely what was the outcome of the application
to the Secretary-General made on June 30, 2009, although he conceded that a
letter dated September 10, 2009, exhibit "E" to the Claimants' Response,
appeared to indicate that the Secretary-General had rejected that
application. It is true that at paragraph 8 of the Statement in Support of
the Defendant's application, the Defendant asserted that "responses from
Trinidad and Tobago and Barbados have indicated that they are in a position
to meet the demands by consumers in Guyana". However, the Defendant withheld
vital information from the Court as to the outcome of the application to the
Secretary-General.
[11] The Defendant also mentioned in its Statement in Support that a meeting
of COTED in Barbados was scheduled for October 8, 2009. Counsel for Guyana
was pressed to indicate to the Court whether an application for
authorization to suspend the CET was made at that meeting and what was the
outcome. Counsel, although claiming he had no instructions, maintained that
COTED had deferred consideration of the application. Counsel for the
Claimants, however, asserted positively that no application for
authorization to suspend the CET was made at the COTED meeting of October 8,
2009. Whether such an application was made or not, the parties are ad idem
that no authorization to suspend the CET was granted at that meeting.
[12] An application under a "liberty to apply" clause requires full
disclosure by the applicant. The Defendant's statement of facts falls far
short of the required standard of disclosure. Further, an application of
this kind must condescend to particulars. It is not enough to state that
nameless third parties understood that the CET was not in effect, when the
substantive application for reinstatement of the CET was made as long ago as
April 3, 2008 and Guyana admitted in open court on June 15, 2009 that in
removing the CET it was in breach of its obligations under the RTC. Such
third parties were thus put on notice for some time and might be expected to
make commercial arrangements that provided for the possibility of the CET
being re-imposed on cement.
[13] Allegations that the Ministry of Finance had concluded that the
macro-economic stability of Guyana would be affected if the status quo were
not maintained, apart from missing the point of the Order, are bereft of
material facts upon which a court can act.
[14] In the result, the Court held that the Defendant had failed to make
full disclosure of material facts or to provide a sufficient evidential
basis upon which the Court could act. The Court could not entertain an
application to extend the time for compliance that was so open-ended in
texture that no time limit therefor was envisaged.
[15] For these reasons the Court on October 14, 2009 dismissed the
application of the Defendant for a stay, and/or a variation of the Court's
Order by an extension of time, and ordered the Defendant to pay the costs of
the application to be taxed in default of agreement. |
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