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JUDGMENT
[1] This application is the sequel to the failure of the Respondent, Guyana,
to comply with the Court's Order of August 20, 2009 ("the Order") within the
period of 28 days fixed by the Order.
By the Order the Court ruled, inter alia, that:
"The Defendant do within 28 days of the date of this order, implement and
thereafter maintain the CET in respect of cement from non-CARICOM sources."
[2] The Applicants seek an order compelling the Honourable Attorney-General
of Guyana to attend court and show cause why he should not be held to be in
contempt of court for failing to implement and give effect to the Order. The
Applicants further pray for a declaration that such failure constituted a
contempt of court. The Applicants amended their application with leave of
the Court so as to include a prayer for a declaration that Guyana was in
breach of Article 215 of the Revised Treaty of Chaguaramas ("the Revised
Treaty").
[3] At the hearing of the contempt application the Applicants orally
notified the Court that they were inviting the Court to find that Guyana was
in contempt by virtue of its disobedience of the Order and to make an award
of costs on an indemnity basis but otherwise they were not seeking any
punitive sanctions.
[4] For the reasons set out below the Court declares that Guyana failed to
obey the Order promptly pursuant to Article 215 of the Revised Treaty. Even
if the Court had jurisdiction to make orders for civil contempt for
disobedience of its orders, which is highly doubtful, the evidence would not
justify fixing the Honourable Attorney-General, an agent of Guyana but not a
party to the proceedings, with any responsibility for disobedience of the
Order. Therefore the Court dismisses the applications to "show cause" and
for a finding of contempt against the Attorney-General. The Court holds that
the oral claim for a finding of contempt against Guyana was not properly
raised in these proceedings.
THE FACTS IN OUTLINE
[5] The Respondent on September 16, 2009, the day before the grace period of
28 days fixed by the Order expired, purported to apply for an extension of
the time for the purpose of re-imposing the CET in accordance with the Order
but only filed an application in proper form on September 23, 2009. This
application was dismissed on October 14, 2009. The application however, did
not operate as a stay of the Order and no excuse was offered for not making
it earlier. Guyana had remained in non-compliance since September 17, 2009.
[6] On October 15, 2009 the Commissioner-General of the Guyana Revenue
Authority instructed the Deputy Head, Customs and Trade Administration to
reinstate the CET on cement imported from non-CARICOM countries but only on
shipments that were ordered after October 15, 2009.
[7] At a case management conference on November 13, 2009 counsel for Guyana
admitted that Guyana remained in continuing breach of the Order because of
the Commissioner-General's failure to reinstate the CET in respect of all
non-CARICOM cement imported into Guyana regardless of the date when it was
ordered.
[8] On January 8, 2010, almost four months after the grace period fixed by
the Order had expired, Guyana reinstated the CET with immediate effect on
all imports of cement from non-CARICOM countries.
[9] On November 16, 2009 the Court invited all States Parties to the
Agreement Establishing the Caribbean Court of Justice ("the CCJ Agreement")
and the Caribbean Community to participate by making written and/or oral
submissions in the contempt application as the application was likely to
raise important issues of law concerning the enforcement of the Court's
orders and the use of contempt proceedings for that purpose. In response to
the Court's invitation Trinidad and Tobago by its leading counsel, Mr.
Mendes S.C., made written and oral submissions, which have greatly assisted
the Court.
THE ORAL CLAIM FOR CIVIL CONTEMP AGAINST GUYANA
[10] In the notice inviting the States Parties to the CCJ Agreement to
participate in the contempt application and in formulating the issues for
determination at a case management conference on December 7, 2009, the Court
recognized that an issue as to whether it had jurisdiction to deal with
civil contempt might well be raised by the application. The Applicants,
however, never sought to amend their application to claim any contempt order
or declaration of contempt against Guyana. The only relief claimed by the
amended application against Guyana, was a declaration of breach of Article
215.
[11] In the course of the hearing in response to a query from the Bench,
leading counsel for the Applicants as a coda to his oral submissions invited
the Court to make a declaration that Guyana was in contempt of court. Yet no
amendment to the application before the Court was sought and none was
granted.
[12] Dr. Denbow S.C. for the Applicants contended that such a claim against
Guyana was implicit in the original application, and all the facts were
before the Court. Mr. Mendes S.C. for Trinidad and Tobago submitted that no
claim for a finding of contempt against Guyana had been made in the original
or amended application. Accordingly, neither the Respondent, Guyana, nor
Trinidad and Tobago as an intervener had notice of the new claim against
Guyana. Counsel for Guyana endorsed this submission.
[13] The Court holds that if it has jurisdiction in civil contempt (which is
doubtful) proceedings for civil contempt should be specifically directed to
and served on the alleged contemnor, who should be given an adequate
opportunity to prepare a defence in advance of the hearing. Because of the
lateness of the Applicants' oral application no such opportunity was
afforded Guyana or indeed the States Parties invited to make submissions on
the contempt application before the Court. In the circumstances the Court
rules that the oral claim for a finding of contempt against Guyana was not
properly raised.
ISSUES
[14] At a case management conference on December 7, 2009 attended by the
parties and the intervener, the Court directed that the following broad
issues arose for determination at the hearing of the contempt application as
filed:
"a. Whether this Court has the power to deal with non-compliance with its
order as a contempt of court;
b. If the Court has that power, what order can it now make and against whom?
c. Assuming affirmative answers to the above questions, does this Court have
in the circumstances of this case power to make the declaration and order
sought against the Attorney-General of Guyana?
[15] However, after studying the written submissions and hearing the oral
arguments the Court considers that the only issues that it needs to
determine for the disposal of this application are as follows:
1. Was the Court's Order so unclear as to be unenforceable by a coercive
order?
2. If the Order was clear, was there a breach of Article 215 of the Revised
Treaty?
3. If the Court has jurisdiction to make orders for civil contempt, could it
on the evidence in this case make an order summoning the Honourable
Attorney-General to show cause why he should not be held in contempt and/or
make a finding of civil contempt against
him?
[16] Three broader issues of general importance arose out of the submissions
canvassed before the Court.
1. What is the meaning of "contempt of court" in the context of Article XXVI
of the CCJ Agreement? In particular did the CCJ Agreement give the Court
jurisdiction to entertain proceedings for civil contempt?
2. What impact, if any, does municipal legislation incorporating the CCJ
Agreement have on the jurisdiction of the Court, and, in particular, what is
the effect, if any, of sub-sections (3) and (4) of section 11 of the
Caribbean Court of Justice Act 2004 (No. 16) ("the CCJ Act") on the Court's
jurisdiction?
3. In the absence of any counterpart to section 18 of the CCJ Act, how are
the Court's orders in its original jurisdiction to be enforced within the
domestic jurisdiction?
These questions could be rendered otiose by a protocol amending the Revised
Treaty to make clear what forms of contempt the Court can deal with and what
sanctions it can impose on those whom it holds in contempt. In the meantime
the Court will express provisional views on these matters in the hope that
the difficulties of interpretation which emerge, will be eliminated by an
appropriate protocol to the Revised Treaty.
CLARITY OF THE ORDER
[17] Guyana contended that the Order was "not without some indicative
element of equivocation". Counsel for Guyana submitted that it was not the
Order that re-imposed the CET. The Order left Guyana free to "implement" or
"complete" the CET and to "maintain" the CET "only from that date" i.e the
date of reinstatement. This submission is disingenuous since at a case
management conference on November 13, 2009 counsel for Guyana conceded that
Guyana was in breach and continued to be in breach of the Order by
restricting the application of the CET to imports of non-CARICOM cement
ordered after October 15, 2009. Further, counsel for Guyana assured the
Court on December 7, 2009 that his client would provide the Court with
information on how much cement from non-CARICOM sources had been imported
into Guyana (a) since September 17, 2009 and (b) since October 15, 2009; and
on what quantity of such cement the CET had been collected. The Court's
emphasis was on cement imported and CET collected since September 17, 2009.
Accordingly counsel for Guyana clearly understood that in ordering the
reinstatement of the CET on cement imported from non-CARICOM sources the
Court had made no distinction as to the date on which imported cement was
ordered. The Court holds that there is no ambiguity in the Order and that
the breach of it was unlawful.
THE CLAIM FOR A DECLARATION AS TO BREACH OF ARTICLE 215
[18] Article 215 of the Revised Treaty of Chaguaramas provides:
"Compliance with Judgments of the Court
The Member States, Organs, Bodies of the Community, entities or persons to
whom a judgment of the Court applies, shall comply with that judgment
promptly".
Article XV of the CCJ Agreement which was not relied on by the Applicants
states:
"Compliance with Judgments of the Court
Member States, Organs, Bodies of the Community or persons to whom a judgment
of the Court applies, shall comply with that judgment."
[19] At the commencement of the hearing of this application counsel for the
Applicants applied for leave to amend his application to include a claim for
a declaration that Guyana was in breach of Article 215. The Court granted
leave after counsel for Guyana stated that he had no objection to the
amendment.
[20] Counsel for Guyana resisted the claim under Article 215 on the ground
that since the amendment had only been granted after the Order of August 20,
2009 had been complied with, the question whether Guyana was in breach of
Article 215 was academic. Courts were reluctant to grant declarations that
served no useful purpose. He relied on Zamir and Woolf: The Declaratory
Judgment (3rded.) at paras 4.032, 4.038, 4.092 and4.093.
[21] Trinidad and Tobago accepted that the Court could find a State Party to
be in breach of the obligation in Article 215 to comply with the Court's
judgment promptly.
[22] There is ample evidence that Guyana did not comply promptly. Guyana's
application for an extension of time for compliance with the Court's Order
was an admission that it had not complied. On October 14, 2009 the Court
refused to extend the grace period of 28 days fixed by the Order. The
application for extension of time did not operate as a stay and so Guyana
was in non-compliance from September 17, 2009.
[23] At a case management conference on November 13, 2009 counsel for Guyana
admitted that Guyana remained in breach of the Order by restricting the
application of the CET to imports of non-CARICOM cement ordered after
October 15, 2009.
[24] The Court rejects the notion advanced by Guyana that compliance with
the Order on January 8, 2010 nearly four months after the time fixed by the
Order for re-imposition of the CET had passed, renders academic an inquiry
into whether
Guyana had complied with the Court's Order promptly. Past acts of
disobedience constitute a breach of the Court's Order and consequently a
breach of Guyana's obligation to obey the Court's Order promptly.
[25] The Court takes note of the information supplied by the Respondent
after the hearing first at its request made on December 7, 2009 and later on
January 26, 2010 by formal order. This information reveals that between
September 17, 2009 and January 8, 2010 42,304 metric tonnes of cement from
non-CARICOM countries were imported into Guyana without the imposition of
the CET. This information serves to quantify the practical consequences of
Guyana's breach. The Court therefore makes the declaration prayed for,
namely, that Guyana failed to comply promptly with the Order and so was in
breach of Article 215 of the Revised Treaty.
THE CLAIM FOR A CONTEMPT ORDER AGAINSTTHE ATTORNEY GENERAL OF GUYANA
[26] Apart from the claim for a declaration that Guyana was in breach of
Article 215 of the Revised Treaty, the Applicants sought the following
orders against the Honourable Attorney-General:
"1. That the Honourable Attorney-General of Guyana, Mr. Charles Ramson, S.C.
do attend before the Caribbean Court of Justice and give viva voce evidence
in order to show cause as to why he should not be held in contempt of Court
for failing to implement and give effect to the aforementioned order of this
Court on 20th
August, 2009.
2. A declaration that the failure of the Honourable Attorney-General of
Guyana to implement and give effect to the Order of this Honourable Court
made on August 20, 2009 amounts to a contempt of Court. It presents a real
risk that public confidence and respect for this Honourable Court will be
undermined."
[27] Even if the Court has jurisdiction to make civil contempt orders, on
the facts and on principles of common sense reflected in the municipal
authorities[FN1] cited to the Court, the Court refuses to make the orders
prayed for.
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[FN1] Beggs v Scottish Ministers [2007] 1 WLR 455; Mv Home Office [1994] 1
AC 377, 425E, 426E
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[28] The Court agrees with Mr. Mendes S.C. that a "show cause" order cannot
properly be made against the Attorney-General of Guyana. He could only be
summoned to show cause if there was a likelihood that an order for contempt
could be made against him.
[29] Further, a coercive order should not be made against someone who is not
a party to the proceedings, as both Mr. Mendes S.C. and counsel for Guyana
submitted. There was no evidence that the Attorney-General was personally
responsible for breach of the Order, or that the Attorney-General, as a
non-party, was responsible in his official capacity for the reinstatement
and maintenance of the CET on cement from non-CARICOM sources. In the
circumstances the Court dismisses the claims for orders relating to civil
contempt against the Honourable Attorney-General.
JURISDICTION TO MAKE ORDERS FOR CONTEMP OF COURT
[30] The Court passes now to consider the broader issues raised in this
application. By way of preface to this discussion the Court notes that the
concept of contempt of court is a common law concept that has no equivalent
in the civil law system: see Pekelis: Legal Techniques and Political
Ideologies[FN2] and Chesterman: Contempt: In the Common Law, but not the
Civil Law[FN3]. In civil law systems offences against the administration of
justice are confined to conduct defined by statute. Penalties are fixed;
normal procedural rules apply, and as a rule formal charges are laid and
tried.
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[FN2] [1942-43] 41 Michigan Law Review 665
[FN3] [1997] 46 ICLQ 521
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[31] At common law superior courts of record assert an inherent power to
make orders dealing summarily with contempt affecting their own proceedings,
and even proceedings of inferior courts[FN4]. There are two broad categories
of contempt at common law: criminal contempt, consisting of words or acts
which interfere with the administration of justice or are likely to do so,
and civil contempt, consisting of disobedience to judgments, orders or other
process of the court and involving private injury.[FN5]
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[FN4] Halsbury's Laws of England (4th ed.) Reissue, para. 454
[FN5] Halsbury's Laws of England (4th ed.) Reissue, para. 402
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JURISDICTION IN CONTEMPT: IS THERE AN EXPRESS POWER?
[32] In this judgment the Court is concerned only with civil contempt of
court in the sense of disobedience of an order of court. Since the concept
of civil contempt (disobedience of court orders) as an affront to the court
is not known in the civil law, the question arises whether civil contempt
exists in international law. Even though civil contempt were unknown to
international law, states may confer that power on a tribunal by
agreement[FN6]. Indeed leading counsel for the Applicants contended that by
the conjoint operation of Article XXVI (b) of the CCJ Agreement and Part
29.3 of the CCJ (Original Jurisdiction) Rules, 2006 ("the Rules"), the Court
had jurisdiction to deal with contempt by disobedience of its orders
regardless of whether these instruments were incorporated into municipal
law. The source of jurisdiction would then be the agreement of the Member
States. For ease of reference Article XXVI is set out hereunder:
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[FN6] See Evans on International Law (2nd ed.) at page 119
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ENFORCEMENT OF ORDERS OF THE COURT
"The Contracting Parties agree to take all the necessary steps, including
the enactment of legislation to ensure that:
a. all authorities of a Contracting Party act in aid of the Court and that
any judgment, decree, order or sentence of the Court given in exercise of
its jurisdiction shall be enforced by all courts and authorities in any
territory of the Contracting Parties as if it were a judgment, decree, order
or sentence of a superior court of that Contracting Party;
b. the Court has power to make any order for the purpose of securing the
attendance of any person, the discovery or production of any document, or
the investigation or punishment of any contempt of court that any superior
court of a Contracting Party has power to make as respects the area within
its jurisdiction".
[33] It is axiomatic that the Rules cannot confer jurisdiction on the Court
to treat disobedience of its orders in the same way as civil contempt at
common law. Article XXVI, however, presents considerable difficulties of
interpretation. Upon a close reading, Article XXVI (b) (hereinafter referred
to as "the second part of Article XXVI") does not confer an express power on
the Court to enforce its orders by contempt proceedings.
JURISDICTION IN CONTEMPT: IS THERE AN IMPLIED POWER?
[34] The exhortation in the chapeau of Article XXVI to the States Parties to
enact legislation to ensure that the Court has power to make orders for "the
investigation and punishment of any contempt of court that any superior
court of a Contracting Party has power to make as respects the area within
its jurisdiction" assumes the existence on the international plane of a
power to make civil contempt orders and by necessary implication evidences
an intention that the Court shall have such a power.
[35] The power to deal with contempt which the local law is supposed to
accord to the Court is limited by the second part of Article XXVI to "the
power to make any order ... that any superior court of a Contracting Party
has power to make as respects the area within its jurisdiction". However,
the superior courts of a Contracting Party with a civil law system have no
competence to punish civil contempt. Thus, the ambit of the phrase "contempt
of court" in the second part of Article XXVI is not clear. One assumes that
on the international plane there must be a uniform meaning throughout Member
States' jurisdictions, though one may query whether this need be the case.
[36] If a power to entertain contempt proceedings could be implied from the
second part of Article XXVI, it cannot be said with any certainty that the
phrase "contempt of court" in the CCJ Agreement includes civil contempt, or
what forms of contempt are covered by that expression. For example, if it
includes criminal contempt what is its scope and what sanctions apply?
JURISDICTION IN CONTEMPT: IS THERE AN INHERENT POWER?
[37] Counsel for the Applicants, Dr. Denbow S.C., submitted that as an
international court applying the rules and principles of international law
and the decisions of international tribunals, this Court had an inherent
jurisdiction to deal with complaints of contempt of court. He cited two
cases in support of the existence of the concept of contempt of court in
international law: Prosecutor v. Tadic, Case No. IT-94-1- A-R77, Judgment on
Allegations of Contempt against Prior Counsel, Milan Vujin, in the Appeals
Chamber of the International Tribunal for the former Yugoslavia ("ICTY") and
Beqa Beqaj Case No. IT-03-66-T-R77 before the Trial Chamber. The Tadic
contempt case concerned allegations of witness tampering or manipulation by
counsel; Beqaj dealt with allegations that Beqaj had, inter alia, interfered
with a witness, conduct which constituted a contempt of the Tribunal. In
both cases there was no provision in the ICTY statute dealing with contempt.
The Appeals Chamber accepted that the ICTY Rules of Procedure and Evidence
did not permit the Tribunal to adopt rules "which constitute new offences"
[The Tadic case, para. 24]. The Appeals Chamber asserted an inherent power
to make rules affecting the conduct of matters within its inherent
jurisdiction. The content of those inherent powers could only be ascertained
by reference to the usual sources of international law. In asserting a
jurisdiction to try the accused's former counsel for contempt the Tribunal
stated as follows:
"There is no mention in the Tribunal's Statute of its power to deal with
contempt. The Tribunal does, however, possess an inherent jurisdiction,
deriving from its judicial function, to ensure that its exercise of the
jurisdiction which is expressly given to it by that Statute is not
frustrated and that its basic judicial functions are safeguarded. As an
international criminal court, the Tribunal must therefore possess the
inherent power to deal with conduct which interferes with its administration
of justice. The content of that inherent power may be discerned by reference
to the usual sources of international law". [The Tadic contempt case, para.
13].
[38] Neither the Tadic contempt case nor Beqaj (which applied that case)
dealt with disobedience of a final court order. The Nuclear Tests case
(Australia v France)[FN7], a non-criminal case, was relied on in the Tadic
contempt judgment, but no issue of contempt arose in that case. In the
Nuclear Tests case the ICJ was asserting its right to regulate its own
procedure so as to entertain an objection to a full hearing of injunctive
proceedings after France had announced internationally that it would no
longer carry out nuclear tests in the Pacific. These cases are therefore not
authority for the existence of an inherent power in an international court
to punish disobedience of a final order in non-criminal cases. The Court
expresses no opinion as to whether the principle asserted by the UN ad hoc
international criminal Tribunals of inherent powers to punish contempt of
court extends to disobedience of a final order of court in a non-criminal
case. The Court also reserves it position on whether an inherent
jurisdiction "to ensure that the exercise of its jurisdiction over the
merits, if and when established, shall not be frustrated" or "to provide for
the orderly settlement of all matters in dispute" (see [23] of the Nuclear
Tests case (supra)) is sufficient to found a jurisdiction to treat
disobedience of a final order in a non-criminal case as a contempt of court.
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[FN7] (1974) ICJ Reports 253
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[39] Indeed the Tadic contempt case has been criticized in an article for
openly adopting the common law approach to contempt of court. In the same
article it was the author's view that "the Tribunal's law on contempt is not
one of the most opportune and meritorious of its achievements over the past
10 years''[FN8]
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[FN8] Goran Sluiter: The ICTY and Offences against the Administration of
Justice - (2004) 2 Journal of International Criminal Justice 631, 637
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JURISDICTION IN CONTEMPT: PRACTICAL CONSIDERATIONS
[40] Even if civil contempt of court were recognized on the international
plane, it is evident that the common law concept of contempt of court must
undergo some metamorphosis if it is to operate in a different setting
"within the basic structure of the international community": see Tadic
(supra)[FN9]. In non-criminal cases the common law sanctions for contempt of
court, i.e. (1) imprisonment; (2) sequestration; and (3) fines, may have to
be adapted to take account of the fact that states are the defendants and
cannot be imprisoned, and that regional international courts, such as this
Court, have no tipstaff or gaols except where treaties so provide.
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[FN9] At [18]
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[41] Thus committal is not available as a means of enforcement. Nor is
sequestration since the writ of sequestration does not run in the
international arena. Fines were originally considered inappropriate in cases
of civil contempt since remedies for civil contempt were "primarily coercive
or remedial rather than punitive": see Australian Consolidated Press v.
Morgan[FN10]. Despite the trend in municipal cases to punitive sanctions, in
the absence of enforcement machinery of its own this Court would refrain
from imposing fines at the supranational level.
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[FN10] (1965) 112 CLR 483, 499
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[42] In the context of a multilateral regional agreement it would be
sufficient to make a declaration finding a Contracting Party in contempt of
court and to leave to the other Contracting Parties the consequences of that
finding, whether the sanctions be economic or political or of some other
kind.
[43] When one transplants civil contempt of court into the international
arena among nation states, the primary sanction is a declaratory finding of
contempt or non-compliance with the Court's order. In the result such a
declaration is similar to the one available under Article XV of the CCJ
Agreement or under Article 215 of the Revised Treaty (where the obligation
is to comply promptly). The lack of meaningful difference between these
declarations and a declaratory finding of contempt suggests that "contempt
of court" in Article XXVI may not cover disobedience of a final order of the
Court, though the Court expresses no concluded view on this point.
[44] In summary, no express power to entertain contempt proceedings is
granted in Article XXVI. Further, it is by no means clear that one can
extrapolate from the ad hoc international criminal tribunal cases that
international courts have an inherent jurisdiction in civil contempt in
non-criminal cases. No clear authority has been cited to the Court in this
regard. An argument for an implied power to deal with civil contempt might
be based on the second part of Article XXVI of the CCJ Agreement. However,
there are countervailing arguments against this view. On the other hand the
problems outlined above and the lack of any practical value in a finding of
civil contempt on the international plane in the context of the Revised
Treaty and the CCJ Agreement might suggest that no such power was intended.
THE IMPACT OF THE LOCAL CCJ ACT ON THE COURT'S JURISDICTION
[45] Section 11(3) of the CCJ Act provides so far as relevant:
"…The Court shall have the same power as the Supreme Court to make any order
for:
…
(c) the investigation or punishment of any contempt of court".
Section 11(4) states:
"A judge of the Court may exercise all of the powers and functions of a
superior court judge of the Supreme Court".
[46] Mr. Mendes S.C. submitted that on one possible view sub-sections (3)
and (4) of section 11 of the CCJ Act could be interpreted as meaning that
the Court's powers were subject to the same limits that are applicable in
the case of the domestic courts, more especially the limitation with regard
to the making and enforcement of orders against the Government of Guyana
imposed by the State Liability and Proceedings Act, Cap 6:05 (Guyana).
[47] Counsel's alternative and preferred interpretation of sub-sections (3)
and (4) of section 11 of the CCJ Act was that these provisions were enabling
and were not to be construed as transferring to the Court the limitations
contained in the State Liability and Proceedings Act.
[48] While counsel's alternative submission is more attractive, the Court is
unable to endorse it fully. Municipal law can neither confer powers on the
Court in its original jurisdiction nor diminish the powers that the Court
has. Municipal law may, however, recognize an international court within its
national borders and give efficacy to its orders.
[49] For present purposes the interpretation of sub-sections (3) and (4) of
section 11 is quite irrelevant and academic for the reason that domestic
legislation cannot have any impact whatever on the powers which the Court
does or does not have. The only purpose which can be achieved by
incorporating into domestic law the powers of the Court is the enforcement
of the orders which the Court makes in exercise of those powers.
Incorporation into domestic law may make it possible to invoke the coercive
powers of the State in support of orders made by the Court, but to
facilitate this the local legislation must go further than sub-sections (3)
and (4) of section 11 go, and state quite explicitly how and in what
circumstances those coercive powers may be engaged. If the possibility of
local enforcement is limited to orders made in exercise by the Court of some
only of its powers i.e. those which correspond with powers exercised by the
local courts, this complicates the matter greatly as it may raise issues
which a court (presumably a local court) may be called upon to decide.
[50] Sub-sections (3) and (4) of section 11 and the second part of Article
XXVI are founded on the same error i.e. that local legislation can impact on
the powers of the Court.
ABSENCE OF ANY MACHINERY TO ENFORCE THE COURT'S ORDERS DOMESTICALLY
[51] Orders made in the original jurisdiction may require the assistance of
the enforcement machinery of the national courts. By contrast, the Court as
a final appellate court is already part and parcel of the national legal
system and its orders are enforceable in the manner provided in the local
laws.
[52] By Article XXVI (a) States Parties undertake to assist the Court and to
cause its judgments, decrees, orders and sentences to be enforced by the
court process applicable to superior courts of the respective jurisdictions.
That undertaking is fulfilled by section 18 of the CCJ Act in relation to
the appellate jurisdiction, where it is, strictly speaking, not needed. The
CCJ Act however contains no express provision for making the orders made by
the Court in its original jurisdiction enforceable by the domestic process
applicable within the jurisdiction of Guyana.
[53] It is hoped that when the broader issues here discussed come up
squarely for determination the States Parties will have agreed a protocol
which will clarify what was intended by the phrase "contempt of court" in
Article XXVI of the CCJ Agreement and that closer co-ordination will have
been achieved between the drafters at the Caribbean Community and those
within the national jurisdictions.
CONCLUSION
[54] For the reasons outlined above the Court grants a declaration that the
Respondent is in breach of Article 215 of the Revised Treaty. The Court
dismisses the claim for an order against the Honourable Attorney-General
requiring him to show cause why a finding of contempt should not be made
against him and the claim for a declaration finding that the Honourable
Attorney-General is in contempt of Court. The Court finds the oral claim
against Guyana was not properly raised and so it was not entertained. The
Court orders Guyana to pay to the Applicants one-half of their taxed costs
of this application. |
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