Grenada bar association oyez oyez

A PUBLICATION OF THE GRENADA BAR ASSOCIATION

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Volume 4 / Issue # 1

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OYEZ!

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SPECIAL EDITION

1996

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OYEZ! OYEZ!

Volume 4 / Issue 1 Is published by the Grenada Bar Association.

EDITOR IN CHIEF Lady Anande Joseph EDITORS Skeeta Chitan Thandiwe Lyle Jasmin Redhead

CONTENTS

ADVERTISING SALES Jasmin Redhead

04 OVERVIEW OF OYEZ! OYEZ!

CONTRIBUTING WRITERS Dr. Francis Alexis Q.C. Sheba Augustine Robert Branch Celia Edwards Q.C. Ruggles Ferguson Justice Paula Gilford Pauline Hannibal Lady Anande Joseph Sir Lawrence A. Joseph, PhD Sabrita Khan-Ramdhani Michael Lindo Thandiwe Lyle Richie Maitland Christopher Nelson Q.C. George Prime Darshan Ramdhani Karen Samuel Derick F. Sylvester Lisa Taylor

08 WHO’S WHO

PHOTOGRAPHY Caryle “Pye” Noel

20 MESSAGE FROM CELIA EDWARDS, Q.C.

GRAPHIC DESIGN & LAYOUT Innovative Marketing Services

21 PEOPLES LAWS, PENSIONS AND PUBLIC OFFICERS

Birth, Growth, Death…and Resurrection The Judiciary, The Grenada Bar Association

10 MESSAGE OF PRESIDENT OF THE GBA On the occasion of the 50th Anniversary of the Eastern Caribbean Supreme Court

12 EXCERPT FROM ADDRESS

By Justice Paula Gilford

15 EXCERPT FROM ADDRESS ON BEHALF OF The Attorney-General’s Chambers

16 EXCERPT FROM ADDRESS BY The Director of Public Prosecution

18 CELIA EDWARDS, Q.C.

First Female Queens Counsel of Grenada and the OECS On the 50th Anniversary of the Court

Examining Cases, Statutes & the Constitution – Is there light at the end of the tunnel?

25 THE DILEMMA BETWEEN All rights reserved. No part of this publication may be reproduced in any form without the prior written permission of the Grenada Bar Association.

Email: grenadabarassociation@gmail.com

The Eastern Caribbean Supreme Court and Grenada

30 FOREIGN INVESTMENT LAW AND THE SMALL STATE Economic Lure, or Legal Trap?

36 YEAR IN REVIEW 2016 - 2017

38 THE ENFORCEMENT OF A MONEY JUDGMENT

After 12 years in Grenada in context of Section 30 of the Limitations of Action Act Cap 173.

40 THE CARIBBEAN COURT OF JUSTICE And ‘Community Rights’

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42 THE GOODYEAR SENTENCING INDICATION – A crucial tool in the Criminal Justice System –

46 CONTEMPT, SWORD OF DAMOCLES 48 THE COURT, THE CONSTITUTION And National Development

54 THE ADVANCEMENT OF THE EASTERN CARIBBEAN SUPREME COURT Through the Introduction of Court Connected Mediation

56 A TALE, OR TAIL OF REPEALS 58 VIOLENCE IN THE LAW

“Until we stop harming all other living beings, we are still savages.” -Thomas Edison

62 CELEBRATING 50 YEARS OF THE EASTERN CARIBBEAN SUPREME COURT Without Reservations? (Criminal Justice in Perspective)

65 SOCIAL MEDIA AND THE LAW

Navigating the Murky Waters of Social Media

67 IN MEMORIAM...

They are not dead who live in the hearts they leave behind. (Navajo proverb)

71 END NOTES

DANNY WILLIAMS & CO The Staff of Danny Williams & Co congratulates the Eastern Caribbean Supreme Court on achieving its 50th anniversary this court year 2016 to 2017. The journey along the road of justice to this Golden Jubilee is noteworthy as the Appellate Jurisdiction of the court is itinerant through 9 territories. The road to justice is without end and we at Danny Williams & Co together the Public and Private Bar in Grenada shall continue to stand firm with the Court as together we strive to ensure justice and access to justice are available to all.

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Overview of

OYEZ! OYEZ!

Birth, Growth, Death…and Resurrection

By Ruggles Ferguson - Founder of OYEZ OYEZ

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had the honour of being the Editor of the three issues of Oyez! Oyez! that saw the ‘light of day’ – in October 2000, September 2002, and November 2003. It was no easy task, involving many sleepless nights; operating on an almost non-existent budget; manoeuvring the critical tasks associated with publishing in the context of an already hectic schedule; motivating colleagues to write and, very importantly, meet deadlines; securing ads from an already saturated market; co-ordinating with graphic artist, printer and the several contributors of articles; adjusting and readjusting deadlines; and, like everything else, facing the pessimists who believed it was too ambitious a project – until, of course, the first issue came out. Thankfully, my training and experience from ‘another life’ in writing, editing, and publishing fueled my eternal optimism that the project was going to be a reality.

GETTING THE BAR MORE GROUNDED AND CONNECTED HOW DID IT ALL BEGIN? I recall becoming Secretary of the Grenada Bar Association in 1997, full of energy and enthusiasm, and determined to make a positive difference. Things seemed too ‘dead’ in the midst of abundant life and talent at the Bar. Almost immediately thereafter, I presented a proposed plan of action to the then executive.

It included a component to get the Bar more grounded and connected with our people.

After all, a Bar needs to be effective, making a real difference, not just in the lives of our members, but also the broader population.

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Public legal education was key to the proposed plan. So was continuing legal education. And central to both, I believed, was a regular publication of the Bar. It would give lawyers the opportunity to write and share on legal issues. Moreover, it would afford the public the opportunity to read and become more sensitised to issues touching and concerning their daily lives - a win-win scenario that would inevitably lead to a more informed and stable society. Collectively, the talent resided among our members. We just had to create the avenues for realising it.

GIVING BIRTH TO THE IDEA The executive embraced the plan, entrusted me with the responsibility to bring out a publication, and granted me the leeway to co-opt colleagues on a publications committee to assist. My colleague Lisa Taylor was critical in the line up. She fully supported the idea and committed to assist. A stickler for good writing and proper grammar, she became the Associate Editor. We bounced heads on a name for the publication. And it was Lisa who actually came up with the catchy and colorful name “Oyez! Oyez!”, meaning “Hear ye, Hear ye” - an exclamation used in many countries to signal the start of court proceedings; in Grenada it is a familiar ‘shout’ of the Bailiff at the beginning of the criminal assizes.

Ideas come quickly; implementation much slower. Oyez! Oyez! was no different. It took longer than planned to eventually materialise.

A high quality, full-colour magazine like Oyez requires proper planning, ads, money and

related resources. It also requires a generous investment of time (a scarce commodity among lawyers). Ads and articles need to be mobilised, requiring time, patience, and tremendous effort. Moreover, quality printing is expensive (and money is always short!).

OYEZ 1 – TRIBUTE TO A GREAT GRENADIAN With grit and determination, the first issue (Oyez One) was published in October 2000.

We devoted that publication to retired Chief Justice of the Federal Court of Canada, Julius Alexander Isaac – a Grenadian to the bone, who hailed from St Paul’s and who received his primary and secondary education right here at home base. He was the first black man to become Chief Justice of the Federal Court (1991-1999). The Eastern Caribbean Supreme Court, under then Chief Justice Denis Byron (now Sir Denis), held an historic special sitting in Grenada (the first ever) to mark Justice Isaac’s retirement. Oyez One captures the ECSC special sitting, highlights excerpts from the key writings and speeches of Justice Isaac, contains glowing individual tributes from senior Attorneys, and traces the life of Justice Isaac who, regrettably, passed away in 2011. It is an historic keepsake of a true Grenadian/ Caribbean/Canadian icon – a keepsake which Chief Justice Isaac truly and dearly appreciated.

OYEZ 2 – WIDE RANGING ARTICLES The second issue (Oyez Two) came – not six months later as planned – but close to two years later, in September 2002. Oyez Two covered a wide range of articles from Attorneys

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featuring topics such as Making a Will, the Child Protection Act 1998, Title searches, Alternative Dispute Resolution, Case Management under CPR 2000, Legal implications of the New International Trading Environment, and Understanding the Offshore Financial Sector. It also featured the Jean Gibbs, Gairy, and Spence & Hughes cases - all key Privy Council cases from the ECSC, the former two being Grenada cases. Further, it highlighted the wide-ranging activities of the Bar, including Law Week, established in 2001 and continuing to this day.

the material, including articles, were already in place for its publication.

However, Hurricane Ivan struck in September 2004, and the rest is history.

OYEZ 3 – HIGHLIGHTING CONSTITUTIONAL REFORM AND THE CCJ

OYEZ RISES AGAIN

Another year passed and then came issue three (Oyez Three) in November 2003. It featured articles focusing on Constitutional Reform, Intellectual Property, Anti-Corruption Legislation, Building Construction, the Common Law regarding Rape with respect to Husband and Wife (Can a Husband Rape his Wife?), the Rent Restriction Act, Mediation and Negligence. It contained excerpts from the 5th Sir Archibald Nedd Memorial Lecture delivered by St Lucia’s Prime Minister, Dr Kenny Anthony, on Prospects and Possibilities of the Caribbean Court of Justice and also from then Chief Justice Byron’s address for the opening of Law Year 2003-2004. The elevation of Karl Hudson Phillips as a Judge of the International Criminal Court also occupied special place in Oyez Three.

HURRICANE IVAN PUTS OYEZ TO REST

Oyez! Oyez! received wide acclaim, for both quality and content, throughout the OECS, the wider Caribbean, and the Commonwealth – and even as far as the International Bar Association. It was worth every ounce of sweat.

The last issue of Oyez! Oyez! surfaced 14 years ago (November 2003).

Thankfully, it has resurfaced for the 50th Anniversary of the ECSC – a most fitting occasion! Over the years there have been concerted calls for its return. Congratulations to the publications committee, especially to Treasurer Jasmin Redhead who has put her heart and soul into this special edition. Without someone leading from the front, and making the sacrifice, it just won’t materialise.

Oyez! Oyez! encourages us to write, sharpens our ‘penmanship’, preserves our history as a Bar, connects us to the public, infuses us with new knowledge, keeps us updated with cases and statutes, and provides a platform for critical analyses. Now that it has resurfaced, let us keep it on the surface. Let’s collectively commit to making it a permanent feature on the annual calendar of the Bar. Let’s make it happen!

Oyez Four, scheduled for November 2004, never materialised. Some of

We at Kim George & Associates, are proud to be associated with the Grenada Bar Association, on the occasion of the 50th Anniversary of the Eastern Caribbean Supreme Court and we look forward to many more years of its continued development of our indigenous jurisprudence.

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WHO’S WHO JUDICIARY

Justice Paula Gilford

Justice Shiraz Aziz

Justice Wynante Adrien-Roberts

MAGISTRACY

Chief Magistrate Tamara Gill

Her Honour Tahyra Gellineau

Her Honour Karen Noel

Her Honour Nevlyn John

His Honour Teddy St. Louis

His Honour Jerry Seales

MINISTRY OF LEGAL AFFAIRS MINISTER OF LEGAL AFFAIRS

Hon. Elvin Nimrod

REGISTRY DIRECTOR OF PUBLIC PROSECUTION

Mr. Christopher Nelson QC

REGISTRAR (AG)

Mrs. Alana Twum-Barimah

ATTORNEY GENERAL

SOLICITOR GENERAL

DEPUTY REGISTRAR

Mr. Cajeton Hood

Mr. Dwight Horsford

Ms. Francine Foster

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REGISTRAR (COMPANIES)

Ms. Annette Henry

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WHO’S WHO THE GRENADA BAR ASSOCIATION

EXECUTIVE

PRESIDENT Lady Anande Joseph

VICE PRESIDENT Mr. Rohan Phillip

COUNCIL MEMBER Ms. Thandiwe Lyle

TREASURER Ms. Jasmin Redhead

COUNCIL MEMBER Ms. Sabina Gibbs

SECRETARY Ms. Cathisha Williams

COUNCIL MEMBER Mr. Sasha Courtney

ASST. SECRETARY Ms. Skeeta Chitan

COUNCIL MEMBER Mr. Dylan Charles

S&A

Seon & Associates AT T O R N E Y S - AT- L AW

SEON & ASSOCIATES is honoured to extend its most exultant congratulations, commendations and appreciation to the Chief Justice and each of the Judicial Officers of the EASTERN CARIBBEAN SUPREME COURT, in this year of its Golden Jubilee.

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As we look back with solemn gratitude on the Court’s impact on regional development, we look forward with ardent anticipation to the continued advance of sophic jurisprudence and judicial decisions in Grenada and the Eastern Caribbean

FIAT JUSTITIA 1967-2017

SEON & ASSOCIATES - Lucas Street, St. George’s, Grenada

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Message of President of the GBA

On the occasion of the 50th Anniversary of the Eastern Caribbean Supreme Court

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t gives me great pleasure to share this message on the occasion of the celebration of the 50th Anniversary of our Court and publication of this special commemorative edition of the GBA’s magazine, “Oyez, Oyez”, conceptualised by my predecessor, Ruggles Feguson. I thank our indefatigable and resourceful Treasurer, Jasmin Redhead and her production team at Innovative Marketing Services Team led by Angus Samuel with photographer Carlyle Noel, for making this collectors’ edition one of superb quality. I also thank my coeditors, GBA Executive members: Thandiwe Lyle and Skeeta Chitan for their time and commitment to this project.

As we celebrate the jubilee of our Eastern Caribbean Supreme Court, we proudly record that for the past 50 years, the Eastern Caribbean states have embraced a regional court system. Grenada has an historical role as the original home of the Court. Athough we were not present at the Court’s inauguration, there must have been a lot more pomp and ceremony at that first sitting, than witnessed at the commemorative ceremonial sittings in our respective territories fifty years later in February 2017.

PRESIDENT Lady Anande Joseph

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However, the presidents of the constituent OECS Bars spoke with one voice throughout the region on our collective acheivements and our collective challenges to realising justice including insufficient budgetary resources for the legal sector, an insufficiently trained and paid cadre of court staff, the neglect of the preservation of deeds, inadequate electronic databases for title deeds, unresponsive registries, lack of meaningful consultations and express policies on law reform and court management, and the need for modern court spaces. However, here in Grenada, government’s efforts are acknowledged as the replacement court has come a far way since

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Hurricane Ivan decimated the previous court plant and legal offices.

We must commit to overcoming our challenges together by identifying and advocating for constructive solutions. Reimagine with me, the future of a wonderful state of the art legal complex housing court and support staff in one space, populated by judges flanked by judicial assistants, with on screen notifications, video linking and the JEMS system humming efficiently all day. A court system delivering holistic justice and access to justice regionwide.

Our future requires commitments to the highest ethical standards of integrity and accountability in our practices and stewardship of our clients’ matters and funds. Many clients purport to pursue justice but really just want to share their stories with professionals. They come to us lawyers with their widows’ mites, small earnings from farms of nutmeg or cocoa or dasheen and other crops. They put their trust in us lawyers. We must not betray that trust. Even as we blow our trumpets of jubilee, we must dispel the public perception of a profession that is too cloistered, secretive and protective of their own misconducts.

Our annual public legal education and outreaches, including the headline Sir Archibald Nedd Lecture in Grenada inspired by Ruggles must continue into our futures.

Imagine too, our continued national advocacy around social responsibilites, agitating to end laws which offend modern human rights: laws allowing corporal punishment, flogging and whipping of

children and adults alike. We must call for another round of constitutional engineering based on a model which will deepen national consensus over bipartisanship. We, as lawyers, should advocate for social justice inclusive of principles of human rights, fairness, equality, sustainability, meaningful access to justice, and policies which entrench and implement responsive democratic and governance principles. As Grenada continues to be a leading influence on matters of sustainable development it is important that young lawyers take up the learning in these areas and meet the threats to our small island states such as cyber crimes and sustaining a blue economy and interact in a digitalised world. In the next 50 years we will have to think outside of the existing legal box and develop evolving legal frameworks which dovetail with the national 2030 Plan.

As we face forward to the next fifty post modern years, we must be forward thinking A nation that embraces a regional court system should not shun an appellate regional court system of the Caribbean Court of Justice. Let us not be fearful of our own judgments and abilities. Let us demand effective and efficient deliveries of justice at every level of our court system. Our future professional hallmarks must be integrity and accountability. This will be supprted by the General Legal Council on which sits three representatives of the Bar Association. As we prepare for the next fifty years let us keep the words of Martin Luther King in mind “We need leaders not in love with money, but in love with justice, not in love with publicity, but with humanity.”

I wish to congratulate the Eastern Caribbean Supreme Court (“the Court”) on the occasion of its 50th anniversary which is a sterling achievement for any Court and no doubt one for the young States and territories in this jurisdiction.

Among the many achievements of the Court has been the publishing of the Court’s website; the introduction of the Civil Procedure Rules 2000, replacing the old Rules of the Supreme Court; the introduction of a Court driven case management; a new selection process for the appointment of our Judges by the Judicial and Legal Services Commission based on principles of transparency, competition and merit; JEMS; availability of research tools such as LexisNexis and QUICKLAW to its Judges and Registrars, thus improving the quality of judgments and efficacy of personnel; hearing via video link; to name a few.

NAEISHA JOHN-DIARRA A T T O R N E Y- A T- L A W

Grenville, St. Andrew, Grenada

The Court continues to work assiduously to improve the mediation process and in facilitating training to the magistracy of the region and in reducing the backlog in the system and many other projects. No doubt the Court will continue to improve and grow from strength to strength.

It is therefore with a sense of pride that I congratulate the Court for its many achievements and I am elated to call myself an officer of the Court.

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Excerpt from address by

JUSTICE PAULA GILFORD that was dominated by men, eleven to be exact, from the inception of the court. No doubt the Honourable Chief Justice’s accomplishment has paved the way for others to follow in that she represents success, perseverance, and true partnership in this once male dominated field. I am sure her accomplishments have and will continue to make an indelible and worthwhile mark and will be remembered for many more benchmark celebrations. Her accomplishment has laid the foundation for anyone, regardless of gender or race or nationality to aspire to higher heights.

Our Court has continued to endeavour to fulfil its mission and vision statement that of, and I quote: “To serve its member states by providing access to a system of justice that is accountable and independent and administered by officers in a prompt, fair, efficient and effective manner.”

And I quote again, “The achievement of professionalism and excellence in the timely, effective and efficient access to an administration of a cohesive, independent and accountable system of justice for the benefit of its member states...”

Justice Paula Gilford

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he celebration of 50 years for anyone or any institution is indeed a milestone, a milestone to reflect on where one has come from and then to look prospectively as to the way forward.

The Eastern Caribbean Supreme Court was established in 1967 by the West Indies Associated States Supreme Court Order No. 223 of 1967. In relation to Grenada, the court was styled “The Supreme Court of Grenada and the West Indies Associated States” on independence of Grenada in 1974, and is still so styled today.

Grenada saw a break in the ties with the Eastern Caribbean Supreme Court during the throes of the revolutionary period, but has returned to the fold.

It is obvious that each member state has now embraced the court and is assiduously moving ahead to ensure survival of this institution in spite of the global changes taking place, from the United States to the United Kingdom and European Union.

The court has made much progress during its 50 years, the most significant, in my view, is our first female Chief Justice, Her Ladyship the Honourable Dame Janice Periera, D.B.E, who ascended to the highest office within the Eastern Caribbean Supreme Court in 2012. The Honourable Chief Justice is a stalwart who has proven to be unwavering in a position

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As a general principle we need to begin thinking of creative ways to achieve the goals we wish to achieve. Also of note is to move towards the use of a prison video link to facilitate the conduct of criminal proceedings by the use of technology to allow prisoners to participate remotely in the court proceedings. With the security for all court users being of paramount importance, the Eastern Caribbean Supreme Court headquarters is in the process of installing prison video links from the Criminal courtrooms to Her Majesty’s Prisons. The equipment has been acquired and there has been some training of the main stakeholders. This would assist with matters involving vulnerable witnesses such as children, and in bail applications.

This facility would reduce the need for additional manpower for heightened security in the transportation of prisoners. Vulnerable witnesses will be protected from interacting directly with dangerous prisoners and lessen high risk prisoners from interfacing directly with other court users unless it is absolutely necessary. A practice direction is currently being developed to facilitate and ensure the effectiveness of this system.

The Court through its practice direction has seen the need to focus even more on mediation, and mediation is being used as a means of resolving conflicts outside of, or as early as possible, in the court process by encouraging and facilitating discussions between the parties. Mediation will soon play, and I’m sure you heard the learned Chief Justice indicate an integral role in the judicial system here in Grenada as the court moves to make compulsory court connected mediation before the initiation of any civil court proceedings. Mediation may result in the resolution of conflicts before a court action starts if done earlier in the litigation process and therefore may result in less use of court staff and judicial time. The Court is also of the view that when matters are dealt with through mediation the

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CONGRATULATIONS...

It is with immense pride and admiration that we, the Attorneys and team of Veritas Legal, wish to extend our congratulations to the Eastern Caribbean Supreme Court on its Golden Jubilee.

This Honourable Court embodies the vision of the Organization of Eastern Caribbean States to establish a progressive legal framework in the Caribbean. A common court with a common goal: Justice for all!

We shall continue to extend our fullest support in this march of progress to higher aspirations and full independence.

Steele’s Commercial Complex, Grand Anse, St. George, Grenada

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parties are often more satisfied with the outcome and often even more inclined to comply with the agreement.

In an effort to continue the strengthening of the judiciary, efforts have been made to strengthen the juvenile justice system as well. Through the implementation of the diversion programme for young offenders the Government of Grenada has moved one step closer to the establishment of the Bacolet Rehabilitation Centre. With the advent of the Centre it is expected that children and young persons would obtain the support they need. It is expected that potential offenders will be diverted into living conditions where they will be rehabilitated thereby shaping more responsible youths. Moreover, the Juvenile Justice Programme will also facilitate a reduction in offending behaviour and improvement of selfesteem among the juveniles who come into contact with the system.

This aspect is enhanced by the implementation of the Juvenile Justice Act No. 24 of 2012 which provides for the special treatment of children accused of committing crimes.

In Grenada as well there was the enactment of the new Jury Act and the enactment of that Act now facilitates the use of a wider catchment of potential jurors. To be effective would mean that all parties understand their roles and utilize the Act to make it as effective as was intended by the legislation.

Over the years there has been a considerable increase in civil litigation.

There has also been a marked increase in criminal matters as well. In relation to the criminal matters, this we see may be due to a number of reasons, for example, the use of paper committal and an increase either in criminal activities or more persons reporting crimes. Like any growing and developing institution, there is still the need for continued improvement of the tools needed for the effective and efficient functioning of the wheels of justice. Thinking prospectively it is hoped that the Supreme Court will be housed in one building to ensure even more efficient managements of the courts, that there are still other areas of the judicial system that need to be improved, for example, the need for a legal aid clinic that focuses on criminal law, possibly more interaction with court users so that they will be better able to understand the judicial process, and further, the need to lend more support to our mentally ill persons who remain in the mainstream prison system because there are no appropriate facilities to house them. These are just a few issues that we must address when considering the way forward. As we contemplate our achievements and the way forward, the words of Ecclesiastes 3:1 come to mind: “There is a time for everything and a season for every activity under the heavens.”

In the context of today’s celebration, I would like to end by saying though we must not forget our past lest we repeat it, it does not mean that we cannot embrace the future.

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Individually, everyone has been able to benefit from the use of the Court, but as a community we can truly say that we have benefitted tremendously.

We have an institution which we can truly call our own where, for the

most part, there is access to justice for everyone. Of course, we still have a far way to go, but some of this will depend on the political will of the Government. To this, the Court is also trying to devise novel ways to ensure the continued accessibility to justice for all.

FIAT JUSTITIA 1967-2017

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The law office of Deborah Mitchell and Associates extends congratulations to the Eastern Caribbean Supreme Court (ECSC) on its 50th Anniversary.

Deborah Mitchell and Associates

Petite Esperance, Central, St. David, Grenada

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From its inception, the court has rendered effective and efficient service to the people of the region and has also produced jurists of the highest caliber, second to none; The Right Honourable Sir Vincent Floissac (St. Lucia – Chief Justice of the ECSC and a member of the Privy Council); Sir Denis Byron (St. Kitts – Chief Justice of the ECSC, President of Internal Tribunal for Rwanda and Current President of the Caribbean Court of Justice); just to mention but a few.

Best wishes for continued success and satisfaction in the future.

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Excerpt from address on behalf of the

Attorney-General’s Chambers

by Mr. Robert Branch

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Supreme Court Model Regional Court’. This book contains over 400 pages about the court, and I have used it for some of my research.

Madam Chief Justice mentioned this morning the movement of the Court which was originally headquartered in Grenada in 1979, from Grenada to St. Lucia, and whether the Court was pushed out or decided to move out, this whole initiative is not very clear. I have to thank Dr. Francis Alexis, Q.C. for his book titled ‘Eastern Caribbean

In closing I want to mention a little bit about the past, probably, I can’t say look towards the future because what we expected to happen didn’t, and I have to mention Dr. Francis Alexis, Q.C., and the efforts he lent to the Constitution Reform together with Mr. Ferguson and myself. We had plans to ensure that the people of Grenada had

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Let’s all hope in the next 50 years we continue to distinguish ourselves, that we continue to support an independent judiciary, to support the strict separation of powers and to ensure there is greater access to justice.

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The Court Connected Mediation is now well in place, going well; Civil Procedure Rules are in place, not perfect but an improvement from the past; the Court now has greater control over the filings.

greater access to justice by ensuring that, in terms of the whole structure, that a final appellate court was not the Privy Council but the Caribbean Court of Justice. We had plans to have the name of the Court changed officially from the Supreme Court of Grenada to the West Indies Associated States Supreme Court. That didn’t go as well as we had planned. We had hoped that the people would have voted for greater access to justice and other things.

The Partners and staff of Grant, Joseph & Co. Law Firm congratulate the Eastern Caribbean Supreme Court on its 50th Anniversary.

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n behalf of the Attorney General and the Government of Grenada, I offer sincerest congratulations to the Court on activities to mark its 50th Anniversary celebrations. I wish to reiterate the commitment of the AttorneyGeneral’s Chambers and the Government of Grenada for an independent judiciary, and the continual Government support for the principle of the strict separation of powers.

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The citizens of the member states of the OECS are fortunate to have an itinerant court of appeal, which makes justice more accessible to all.

We wish the Court continued success in executing its vision and accomplishing its mission. We proudly join with the Court on its golden jubilee in celebrating the past and embracing the future.

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Excerpt from address by the

Director of Public Prosecution was put in place to ensure that any concerns were addressed and that the highest standard expected of judicial officers and the Court were met. When a member of the Inner Bar and someone who had acted as a High Court Judge on many occasions, when there were concerns as to his professional conduct, the Court was able to invoke the disciplinary procedure and eventually have that lawyer struck from the book. And very recently, when one of its own at the highest level, the Court of Appeal, no doubt having given yeoman service, exemplary service to the Court of Appeal, but not for the duration that will make one entitled to certain benefits, and he requested such benefits, and the Court politely and professionally stated that that, we were not poised that, and in applying the law as we ought to, we could not distil certain benefits.

That position of the Court was challenged in Court of Appeal and to the Privy Council. We are happy the Privy Council endorsed the decision of the lower court and confirmed that he was not entitled. So I am sure no doubt, having sat with the distinguished judge, there would have been the temptation, well, let us give him something. But the Court no doubt mindful of its role and mindful of the standards that are expected did what it considered to be the right thing.

Mr. Christopher Nelson, Q.C.

This is a golden occasion, the Court celebrating 50. As the Learned Chief Justice has put it, this is a signature milestone, and so I’m very happy. I am sure we are all happy to be part of the Court, to be associated with the Court on this momentous occasion.

The Learned Chief Justice has, in a detailed way, taken us through the inception of the Court, a detailed examination of its history, and brought us to today, where we are and where we would like to go. I don’t think any of us can add more to that. It will be, My Lady, as if we would attempt to build refined gold, or paint a gift.

I am sure that at the birth of the Court on the 27th of February 1967, most of the lawyers were not around. The few of us who were around, I am sure, with the passage of time, do not quite recall all the details, the colourful details, the impressive details, the details that make us who and what we are and have made the Court what it is today.

I want to pay tribute to the Court for the way in which in demonstrating its maturity has been able to deal with its own. When there were concerns about the stint of a sitting judge in one of the jurisdictions, a tribunal

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We note how active the Court is in the area of reform, as you mentioned the CPR, the Commercial Court, Criminal Division. We just have to look in the West Indian Reports, or go on the Court’s website to see a number of decisions that are there for posterity. We know the efforts of the Judicial Education Institute in terms of affording training, guidance, mentorship to new entrants to the Bench. We know the Judicial Retreat which again is aimed at helping to develop the Court and its judicial policies.

But no doubt there are challenges, as the Learned Chief Justice said.

But we know the major decisions. The Chief Justice did mention quite a few: Benjamin and the AG, Hughes v Spence, et cetera. I have been through some of these developments and witnessed their unfolding firsthand. We recall when the Hughes v Spence decision came down and we had to make an about turn with many murder cases. We recall the lack of guidance, but Chief Justice Byron, as he then was, being alert and responsive, we were able in quick time to have some guidance as to how we proceed with this new manner of sentencing. And indeed I am happy to say and I am proud of the fact that in Grenada, we did the first case within the OECS jurisdiction that applied the new Hughes v Spence guidance. That was the case of R v Kyron McFarlene; it was the first case in which the new Hughes v Spence guidelines were applied by then trial Judge Brian Alleyne, and it was the first case in which under the new guidelines we had the death penalty being handed down. It was the last occasion in Grenada in which the death penalty was actually administered, and it was a double death penalty for that matter in 2001.

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DPP & Crown Counsels

This Court, as the Learned Chief Justice has indicated, made many landmark decisions, one in which I am very familiar, and on the criminal side, is Julio Romero v R dealing with dangerous drugs and the concept of possession, constructive possession. In fact our Misuse of Drugs Act was styled in time, was one of the earlier attempts to implement the requirement of the Vienna Convention on Narcotic Drugs and Psychotropic Substances. And it was a case in which the trial judge, without much guidance and support, had to apply the new presumption of possession and inference of knowledge. But I dare say it was handled well to the extent that the Court of Appeal confirmed the decision of the lower court, and that decision has been relied on by many courts in the region. The Court of Appeal in Trinidad & Tobago happily applied that decision, a decision in which the elasticity of the concept of possession was examined.

So that is another example of how this Court has come a long way in terms of its decision...

The future certainly looks promising. Having heard our Chief Justice point the way forward, we note the difficulty with transcripts and the difficulties that that pose at the level of the Court of Appeal. We know the use of technology in recording, but even in that way it’s an improvement, we’re still having problems, but happy that at the very top there is a full

appreciation of that. We are also thrilled by the fact that our Chief Justice is keen on ensuring that technology be employed to every advantage. We know the video link in St. Lucia.

Although our prison in Grenada is fairly close to the courts but still at times, many a times it presents a logistical problem for the meagre resources of the RGPF. We look forward to the day when that could be deployed in Grenada.

And Criminal Rules, Criminal Division, Criminal Master, we anxiously await those developments on the criminal front. We believe that such development would highlight and emphasize the stature of the Court. The cry of the ordinary man is essentially justice is slow, and every effort must be made in ensuring that that perception, if indeed is a perception, be dealt with, or if it is the reality, that it be addressed.

that Sir Vincent Floissac on invitation sat on the Privy Council, the case of Freemantle v R is a case I will not forget simply because Chief Justice Floissac then sat at the Privy Council, someone whom I had the pleasure, the good fortune, to appear before. So when, My Lady, My Lord, we have achieved such scholastic heights, when we have distinguished ourselves in the legal profession, we are still unable, after showing our work, our independence, we are still unable in this modern time to effectively delink from our Colonial past and truly embrace an institution as we have embraced the OECS Supreme Court, embrace the regional institution, the CCJ, that we could be truly proud but we are still today carrying a yoke, a yoke which, unfortunately, some of our own educators still seek to foist upon us.

When we consider the achievements highlighted by the Honourable Chief Justice, when we look at the calibre of judges and lawyers we have produced, when we consider that many of the judges who sat, My Lady, where you are sitting, and My Lord, have moved on to hold high positions, judicial positions in the Continent of Africa, when we consider the current Chief Justice of Belize, when we consider the present, the CCJ and the other offices, when we consider that Chief Justice Byron sat on the International Criminal Court for Rwanda, when we consider

I wish to end by adopting the words of my learned Queen’s Counsel friend Dr. Alexis in his book. When having examined the development of the Court, the various reforms embarked upon, he wrote, and with his permission I quote: “Such reforms would serve the court in good stead as the court goes deep into the years ahead. With these the court may continue dispensing justice in a manner that would boost its image and nurture confidence and respect for it.”

Christopher Nelson, Q.C.

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CELIA EDWARDS, Q.C. FIRST FEMALE QUEEN’S COUNSEL OF GRENADA AND THE OECS

Baptiste Private School and later went on to the Anglican High School. In 1974, amidst the political turmoil of times, she became the first Grenadian female to be awarded the prestigious Island Scholarship.

There followed a Bachelor of Arts Degree from the University of Toronto, Canada, Bachelor of Laws from the University of the West Indies and Legal Education Certificate from the Hugh Wooding Law School.

A brief stint as Deputy Registrar and Registrar of the Supreme Court saw her starting her own firm the Law Office of George E.D. Clyne (in memory of her father) and practicing law for over 30 years as a litigator in all fields.

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elia Edwards née Clyne is the daughter of George E.D. Clyne, a Legal Practitioner in Grenada for over 20 years and Monica Clyne who was the first Grenadian to be appointed Chief Nursing Officer of Grenada.

In 2008 she became the first Grenadian female to be elevated to become one of Her Majesty’s Counsel and indeed in 2016 proceeded further to become the first Grenadian female to appear as lead Counsel before the Privy Council (yes; and win).

She has served on several organisations – The Grenada Scout Association, Rotary Club of Grenada, The Hospital Authority, Land Development Appeal Board, Public Service Board of Appeal and St. Joseph’s Convent Board of Governors.

It is not surprising therefore that Celia herself has pioneered.

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The Law Office of George E.D. Clyne extends Heartiest Congratulations to the Eastern Caribbean Supreme Court on its 50th Anniversary.

We stand proud of the Judiciary and the Jurisprudence emanating from the Court during its existence.

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Message from Celia Edwards, Q.C. on the 50th Anniversary of the Court

We have, to date, an itinerant Court of Appeal which necessitates our Court of Appeal Judges having to live out of suitcases and leave their families for a large part of the year, but they do it with dedication.

And our Court has survived and prospered.

We recognise and applaud our Judiciary for their brilliance, dedication and scholarship. We have seen persons who burst their Judicial teeth at the OECS Bench go on to sit on the Privy Council, become Chief Justices, sit on Courts of Appeal in other territories and become members and indeed President of the Caribbean Court of Justice.

The jurisprudence from our court in the West Indian reports is taught in U.W.I. and law schools and used as precedents in courts all over the world.

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t is said that one of the measures of the success of an entity is the frequency of reference to said entity by unrelated third persons. If this is the case, then the OECS Supreme Court has stood the test of time.

As we celebrate the 50th Anniversary of the Court we acknowledge that it has not been an easy journey.

A court comprising of different territories, each surrounded by water, yet to be managed by one administration, in territories with limited financial means, could only survive by dint of hard work and dedication.

Those of us who have been around for a while recall that the headquarters of the Court were in Grenada when the Grenada Revolution took place. The Court decided to relocate and regroup. But it had to go on because justice must not be compromised.

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The Court has welcomed its first female Chief Justice, the Honourable Justice Dame Janice Pereira whose written judgments lend to no debate as to her judicial brilliance.

The OECS Bar Association is one of the most active in the world and its support has undoubtedly contributed to the success of the Court.

The Bar’s advocacy for members of the judiciary who cannot speak for themselves has been admirable.

I would say that jurisprudence in the OECS is in good hands going forward to the next 50 years Celia Edwards, Q..C.

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PEOPLES LAWS, PENSIONS &

PUBLIC OFFICERS

By Ruggles Ferguson - Partner, Ciboney Chambers

Examining Cases, Statutes & the Constitution – Is there light at the end of the tunnel? eight (8) months continuous service irrespective of age; or completing twenty (20) years continuous service with a proviso that the Public Service Commission (PSC) gets one year written notice of the intention to retire; abolition of his office; on medical evidence to the satisfaction of the Governor-General; and on compulsory retirement for the purpose of facilitating improvement of the organization or department to which he belongs, by which greater efficiency or economy may be affected.

The PSC may require an officer to retire from the public service after he attains the age of 60 years.

PROTECTIONS UNDER 1974 INDEPENDENCE CONSTITUTION On February 7th, 1974 Grenada attained independence from the United Kingdom, after enjoying Associated Statehood status for seven (7) years, from 1967. With independence came our new constitution. Section 106, known as the Supreme Law Clause, declares the constitution “supreme”.

Any law inconsistent with the constitution shall be void ‘to the extent of its inconsistency’. Section 38 mandates Parliament to make laws for the peace, order and good government of the country.

June 3rd, 1950 marked the passage of the then Pensions Ordinance to regulate pensions, gratuities and other allowances for public officers. It later became the Pensions Act, Cap 214 of the 1958 Revised Laws of Grenada, and Cap 233 of the 1990 Revised Laws of Grenada. It now survives, with certain amendments, as Cap 233 of the 2010 Revised Laws of Grenada.

HIGHLIGHTS OF THE 1950 PENSIONS ACT (AS AMENDED) The Pensions Act defines ‘pensionable’ and ‘non-pensionable’ offices; decrees that no officer shall have an “absolute right to compensation for past services or to pension, gratuity or other allowance”; and declares pensions, gratuities and other allowances granted under the Act not to be assignable, except in certain limited circumstances.

Sections 84(8), 92 & 93 of the Constitution reflect the three (3) key provisions of the Constitution relating to pension benefits. Section 84(8) protects the public officer who is required to retire on abolition of his office or for the purpose of reorganisation of his ministry or department. He becomes entitled to pension and retiring benefits “as if he had attained the compulsory retiring age”.

Section 92 preserves a public officer’s existing pension rights. It ensures that the pension benefits a public officer is capable of enjoying, based on the law existing at his or her point of entry into the service, are not made “less favourable” during his or her period of service. It can be made ‘more favourable’, not ‘less favourable’. Section 93 insulates the public officer from arbitrary interference with his or her pension benefits. It mandates that where under any law any person or authority has a discretion to withhold, reduce in amount or suspend pension benefits such benefits must not be withheld, reduced or suspended unless the Public Service Commission concurs.

Qualifications for a pension on retirement include the public officer attaining the age of 55 years; or completing twenty-six (26) years and

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1979 REVOLUTION EMBRACES AND EXPANDS PENSIONS

April 4th 1983 was introduced – public officers in the service before that date were to receive pensions under the Pensions Act; after that date under NIS.

March 13th, 1979 heralded the historic Grenada Revolution, a first for the English Speaking Caribbean. With the Revolution came the suspension of the 1974 Constitution. For the next four and a half years, until October 1983, the People’s Revolutionary Government (PRG) exercised both executive and legislative authority. Several People’s Laws were proclaimed by the PRG, four (4) of which related to pensions: People’s Law No 9 of 1979; and People’s Laws Nos 14, 15 & 24 of 1983.

PUBLIC OFFICERS & THE NIS ACT

Interestingly, as early as March 25th, 1979 (within two weeks of the Revolution) when the PRG enacted its first ten (10) People’s Laws, preservation of pension rights for public officers assumed particular prominence.

People’s Law No 9 declared that “All public servants’ rights and pensions as hereintofore provided under the Grenada Termination of Association Order 1973 shall be preserved”.

Through Sections 46 & 47 of the NIS Act, the PRG clearly intended to address the unique situation regarding pension benefits for public officers. Section 46 allows for the creation of regulations for the purpose of “adapting the provisions of the law” with respect to public officers. Section 47 (1) authorises the Minister responsible for Social Security to modify any public service scheme.

In the Mc Queen case Byron CJ observed that “People’s Law No 24 of 1983 {the Pension (Disqualification) Act}, which was passed when the constitution was suspended, evinced the legislative intention to create new terms of employment for public servants employed after the appointed day (April 4th, 1983) by removing them from the Pension Scheme under Cap 233.

It seems to me that the legislative intention was not fully executed because no orders have

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Prior to the NIS coming into being in 1983, public officers were among the very few guaranteed pensions by law. Moreover, they were not required to contribute to their own pension. It came entirely from the coffers of Government.

With NIS, a contributory scheme, the PRG aimed to significantly broaden the base of pensions, embracing private sector employees and the self employed. Further, it is clear that the PRG recognised that existing pension rights for those already in the service could not be interfered with – a guarantee of not only the Constitution (which remained in suspension) but also of People’s Law No 9 (see above). That’s why the cut off date of

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People’s Laws No 14 of 1983 established the NIS which made provision for pension, sickness, invalidity, maternity and other benefits for all; People’s Law No 15 of 1983 substantially increased the pensions payable to pensioners (10% & 12 ½ % increases) , including Public Officers, School Teachers, Police and Prison Officers; and People’s Law No 24 of 1983 {Pension (Disqualification) Act} disqualified persons entering the service as of April 4th, 1983 from receiving pensions and gratuities under the Pensions Act. As of that date (April 4th, 1983), the NIS Act applied. Both the Pension (Disqualification) Act and the NIS Act therefore took effect on the same day.

CIBONEY CHAMBERS

The Partners & Staff of Ciboney Chambers salute the Eastern Caribbean Supreme Court on its 50th Anniversary – an independent and impartial court committed to greater access to justice, embracing technology, mediation and other forms of alternative dispute resolution, ongoing judicial training, more efficient and effective rules of civil & criminal procedure, partnering with Bar Associations … and the list goes on!

Keep on building and consolidating.

Congratulations & best wishes!

H.A. Blaize Street, St. George’s, Grenada

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been made to create a new pension regime for public servants under the National Insurance Law or otherwise”.

Within six months of the NIS Law and the Pension (Disqualification) Act the Revolution imploded and the PRG dismantled, leading shortly thereafter to the United States military invasion. By November 1983 regime change followed. The PRG was therefore in no position to make the relevant regulations and ministerial orders pursuant to Sections 46 & 47. In any event, there was ample time to make regulations and orders since the first batch of public officer retirees to benefit from the NIS pensions would have been expected in 2009 – at the time (1983) a very long distance away. Subsequent Governments, however, ‘dropped the ball’.

Commenting on the current state of affairs, Price-Findlay J in the Hermilyn Armstrong case (para 31) noted that “The makers of the NIS laws were aware that adjustments would have to be made to the provisions of the Act to have its benefits brought in line to be not less favourable than those granted under Cap 214 of 1958”. The learned Judge continued (at para 35), “There have been no regulations made under Section 46 to modify the NIS Act so as to adapt it to

LA W OFFI C E OF

ALBAN M JOHN We, at the Law Office of Alban M John, take this opportunity to congratulate the Eastern Caribbean Supreme Court on the achievement of its 50th Anniversary.

The Court has been a leader in the development of jurisprudence across a wide body of law and no doubt will continue to be a beacon shedding light on a range of complex legal issues in both public and private law.

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We wish the Court continued success and that it may long remain a bastion determining and protecting the rights of citizens in these islands.

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meet the case of persons employed by the Government. The Minister has made no order under Section 47 to modify or wind up the Public Service Pension Scheme or to repeal the Pensions Act relative to that scheme”.

Seems as though everyone ‘fell asleep’ on this very important issue over the last 26 years.

The legislative and constitutional framework, however, remain intact to facilitate positive change.

CONFIRMING THE SUPREMACY OF THE CONSTITUTION Four key Grenada cases confirm the supremacy of the Constitution with respect to the pension benefits: Donovan v Attorney-General (1993) 2LRC 145; Richard Duncan v The AttorneyGeneral (Civil Appeal No 13 of 1997); Irvin Mc Queen v The Public Service Commission (Civil Appeal No 17 of 1997); and Hermilyn Armstrong v The Attorney General & Minister of Finance (Claim no. GDAHCV 2010/0423 - the first three (3) adjudicated upon by the Court of Appeal of the Eastern Caribbean Supreme Court and the latter by the local High Court.

Donovan v Attorney-General (1993) addressed the constitutionality of the Public Service Re-Organisation Act, Act 9 of 1987, which was intended to facilitate then Government’s retrenchment programme. Donovan had been retrenched. The Act provided that “every officer” who was required to retire was entitled to pension and retiring benefits in accordance with the Pensions Act Cap 233. Section 84(8) of the Constitution, on the other hand, provides for pension and retiring benefits as if the officer “had attained the compulsory retiring age”.

Byron CJ (as he then was) declared the statute void to the extent that it was inconsistent with the entrenched provision of Section 84(8).

The benefits conferred by Section 84(8) of the Constitution could not be reduced by a statutory provision which did not amend the constitution.

Unlike the Donovan case, Duncan v The Attorney-General (1997) addressed the power of the Public Service Commission (PSC), not Parliament. Its focus was on whether conduct complied with the constitution, not whether the law complied with the constitution. The central issue was whether the PSC could deny Duncan the benefits conferred by Section 84(8) by retiring him under the pretense of sending him on leave. He sought a declaration that a requirement that he go and remain on

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leave (even when all his leave was used up) was in effect a retirement entitling him to pension and retiring benefits in accordance with Section 84(8) of the Constitution. Byron CJ held that his Constitutional rights conferred by Section 84 (8) of the Constitution were infringed by sending him on indefinite leave which had the effect of requiring him to retire, for the purpose of reorganisation of his department.

In Irvin Mc Queen v The Public Service Commission (1997) the Appellant (Mc Queen) contended that he was entitled, on the abolition of his office, to receive pension and retiring benefits in accordance with Section 84(8) of the Constitution. On March 1st, 1984 he became a public officer. On September 2nd, 1996, the PSC approved his retirement on the ground that the office of Local Government Co-ordinator, which he then held, was abolished. Byron CJ noted that the term ‘Every public officer’ in Section 84(8) “ is not limited in relation to the date of joining the service. In particular it is not limited to those public officers who joined the service before 1983. This provision therefore applies to every public officer whenever he joined the service…” The learned Chief Justice held that Section 84(8) of the Constitution “creates constitutionally entrenched rights in favour of public servants who are required to retire on the abolition of office or for the purpose of reorganisation of their department or Ministry.

Mc Queen thus prevailed.

Hermilyn Armstrong v The Attorney-General of Grenada & Minister of Finance (2010) addressed the law applicable to the payment of pension benefits to public officer Armstrong in the context of Section 92 of the Grenada Constitution. Was it the Pensions Act, Cap 214 of

1958 (“the Pensions Act”), as contended by Ms Armstrong? Or was it the National Insurance Scheme Act, Act No 14 of 1983 (“the NIS Act”), as contended by the State (Attorney-General & Minister of Finance)?

Price-Findlay J found that the Pensions Act (Cap 214 of 1958) was the law in force when Ms Armstrong entered the service in 1983; that the provisions of the NIS Law fall far short of the benefits Ms Armstrong would have received under the Pensions Act, placing her in a less favourable position than obtained when she became a member of the public service; and that under Section 92 (2)(b) of the Constitution a ‘less favourable’ position is not permissible. Based on the foregoing, Price-Findlay J held that the Pension Disqualification provisions which took effect effect on April 4th, 1983 were inconsistent with Section 92 (2)(b) of the Constitution. Since the constitution is supreme (s.106), the pension disqualification provisions are void and the protection afforded Ms Armstrong by the Pensions Act (Cap 214 of 1958) stands.

CHARTING THE WAY FORWARD No doubt our constitution preserves and protects pensions for public officers. Further, while the courts have not yet decided whether the Hermilyn Armstrong decision applies to all public officers or only to those who joined the service before the Disqualification Act took effect, an existing statutory framework (the NIS Law) provides the mechanisms to make favourable adjustments to the pension of public officers who joined the service post April 4th, 1983. The PRG had already laid the foundation for positive change way back in 1983. It is now time to build on that foundation in charting the way forward.

Let the stakeholder discussions and engagements begin. There is light at the end of the tunnel!

Lewis & Renwick ATTORNEYS-AT-LAW & CONVEYANCERS

The Law Firm of Lewis & Renwick says congratulations to the ECSC on an amazing 50 years, looking forward to another 50 years of growth and commitment.

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THE DILEMMA BETWEEN THE ECSC AND GRENADA

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he Eastern Caribbean Supreme Court (ECSC) (comprising a High Court and a Court of Appeal), was established on 27th February 1967. It was established to take over the functions of the Windward and Leeward Islands Supreme Court and the Windward and Leeward Islands Court of Appeal which were established in 1959. Those latter courts served the Eastern Caribbean territories including Grenada. As the ECSC is celebrating its 50th anniversary this year 2017, it is useful to reflect on what may be considered to be the constant dilemma between this court and Grenada over the years. The main source of the dilemma stems from the historic occurrence of the first coup d’etat to take place in the English speaking Caribbean. This took place on 13th March 1979 in Grenada. In a loose and emotional sense that historic occurrence is oftentimes referred to as “the Grenada revolution”. However in a strictly legal/political/ philosophical perspective it was nothing more than a coup d’etat.

Following the coup d’etat the usurper regime, known as the People’s Revolutionary Government (PRG), led by Prime Minister Maurice Bishop, among other things, suspended the Grenada Constitution in accordance with People’s Law No. 1 and established the Grenada Supreme Court comprising a High Court and a Court of Appeal in accordance with People’s Laws Nos. 4 and 14. This new court system was separate and apart from the ECSC. The new system had its own judges and administrative staff and final appeals to the Privy Council were no longer possible in accordance with People’s Law No. 84. Very soon after the coup d’etat a decision was taken to have the headquarters of the ECSC removed from Grenada and relocated in St. Lucia. It is not clear as to who took that decision.

This new Grenada Supreme Court remained functional from 1979 for over twelve years up to 1991 even after constitutionalism was substantially restored. The court became defunct only after the passage of the Constitutional Judicature (Restoration) Act, in 1991.

Following the demise of the PRG on 25th October 1983, just after the military intervention of American and Caribbean Forces, Bernard Coard and his followers were arrested and charged with the murder of former Prime Minister Maurice Bishop and others on what was

by Sir Lawrence A. Joseph, PhD

then called Fort Rupert on 19th October 1983. The trial, referred to as “the Maurice Bishop murder trial” was scheduled to be heard in the Grenada Supreme Court. From all appearances the authorities of the ECSC had given notice that Grenada would not be accepted back into the ECSC system until there was a final disposal of all the cases which were connected with that trial. Therefore by way of a pre-trial motion the defendants in the case of DPP v Mitchell and Others (1985) paradoxically took the position that the Grenada Supreme Court was unconstitutional, and therefore did not have the validity and competence to undertake their trial. Obviously this situation presented a constitutional dilemma for the judges of that court.

The matter was first heard by Grenada’s then Chief Justice Archibald Nedd of the Grenada High Court. The Chief Justice agreed with the defendants that the Grenada Supreme Court was unconstitutional.

On the other hand, he concluded that despite this fact, it was a matter of public necessity that the PRG would have established that court in order to have a functioning judicial system in place after the constitutional court withdrew its services from Grenada.

The Chief Justice therefore surmised that the court had the validity and competence to try the defendants based upon the common law doctrine of necessity. He cited the case of Attorney-General v Ibrahim 1964 CLR 195,265Cyprus in order to support his ruling.

The defendants then appealed this ruling to the Grenada Court of Appeal. The judges of the Court of Appeal, Haynes P, Liverpool, J.A. and Peterkin J.A after listening to the various arguments upheld the ruling of Chief Justice Nedd.

The doctrine of necessity is a common law doctrine which provides a justification for what would otherwise be illegal government conduct during a period of public emergency such as a coup d’etat or a revolution. The Grenada Court of Appeal ruled that although the 1974 Grenada Independence Constitution was suspended by the PRG no new constitution took its place so there was continuity of the old legal order under the original Constitution, which made the “revolutionary court” unconstitutional. Notwithstanding this fact, the doctrine of necessity clothed the revolutionary court with validity

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and competence. In other words, the judges adopted constitutionalism in a flexible sense as permitted by the doctrine of necessity. Had they adopted the doctrine of strict constitutionalism as sometimes utilised in common law jurisdictions then they would have had no choice but to agree with the appellants that the court was unconstitutional and also that it had no validity or competence to undertake their trial. They would then have had to dismiss the case against the appellants.

Additionally, had there been a “successful revolution” with the endorsement of the populace a presumption could have been made that there was discontinuity of the legal order so that whatever laws were passed by the PRG would have been constitutional, (under a new constitutional order) valid and competent. The applications of the appellants could also have been dismissed on this basis. If this was the case then either Kelsen’s theory of revolutionary legality or the doctrine of successful revolution could have been applied as had been done in common law jurisdictions in the past in order to resolve extra-constitutional issues.

Notwithstanding this given panacea to the judicial dilemma, the Court of Appeal ruled that there was no discontinuity of the legal order as whilst the PRG was the de facto government from 13th March 1979 to 19th October 1983 it did not have de jure status. In other words it did not obtain legitimacy from the populace either by way of general election or by referendum.

It is interesting to note that the principles which were established by the Grenada Court of Appeal led by President Haynes in the Mitchell case

for determining the proper usage of the doctrine of necessity and for the application of de jure status of a usurper regime were subsequently endorsed by the later Fijian cases of Prasad v The Republic of Fiji (2001) and Qarase & Others v Bainimarama & Others (2009).

After the rejection of the pre-trial motion by the Grenada Court of Appeal, an attempt by the defendants to appeal the decision to the Privy Council in London proved to be futile as their Lordships asserted that they had no jurisdiction in the matter. It will be recalled that the PRG had abolished final appeals to the Privy Council by way of People’s Law No. 84. As a consequence, the trial in earnest was undertaken by then Acting Chief Justice of the Grenada High Court, Sir Dennis Byron. Prior to this, Sir Dennis was a member of the judiciary of the ECSC. His services were made available to the Grenada High Court, specifically to undertake the trial of the defendants who consistently disrupted the proceedings of the court, often shouting out aloud that the court was a kangaroo court. Sometimes they had to be removed from the court because of their disruptions.

However, Byron, CJ. Ag. exercised much patience and always remained firmly in control of the court. Eventually the jury convicted fourteen of the nineteen defendants for murder, three others were convicted for manslaughter, one was acquitted and the last one was granted a nolle prosequi. On 4th December 1986 the mandatory sentence of death was imposed on the principal

Congratulations The Partners and Staff of the Law Office of Joseph & Joseph, extend congratulations to all of the stakeholders of the circuit of the Eastern Caribbean Court.

We applaud the leadership, contributions and efforts of members of the Judiciary, court staff, officers of the Royal Grenada Police Force, prosecutors, and lawyers, upon whose shoulders our court's history was raised.

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offenders and lesser sentences were imposed upon the others who were convicted. The defendants then appealed their convictions and sentences to the Grenada Court of Appeal, which was rejected.

In 1991, following what appeared to be the final disposal of the Maurice Bishop murder trial, the constitutionally elected government of Grenada passed the Constitutional Judicature (Restoration) Act. With effect from 16th August 1991, the Act abolished the Grenada Supreme Court. At the same time Grenada reverted to the original jurisdiction of the regional constitutional Court, entitled, the Eastern Caribbean Supreme Court which name Grenada never adopted.

Additionally final appeals to the Privy Council were restored.

Section 7 (3) of the 1991 Act provided that all matters and proceedings pending in and not determined by the ‘revolutionary’ Court of Appeal shall be determined and concluded as if pending in the Eastern Caribbean Court of Appeal. In fact the trial of the defendants was determined by the ‘revolutionary’ Court of Appeal on 12th July 1991, when the defendants’ appeal against conviction and sentence was rejected. At this stage no appeals to the Privy Council were possible.

However, despite the decision of that court, the defendants seized the opportunity to apply to the ECSC for the rehearing or reviewing or redetermination of their appeal against their convictions for murder. The application was dismissed by the Eastern Caribbean Court of Appeal on the ground that the court had no jurisdiction to determine any matter which had already been determined by the ‘revolutionary’ Court of Appeal. (Mitchell v Attorney-General (1993) 3 LRC 199).

Following other constitutional hearings in the courts, one of the defendants, Bernard Coard, together with the other defendants in a Fixed Date Claim Form filed an application in the re-established constitutional High Court of Grenada on 23rd September 2002, seeking a declaration that their continued incarceration as a consequence of the decision of the ‘revolutionary court’ was unlawful and therefore they should be released. They relied on the following grounds, inter alia: (i.) that the sentence of death which was imposed upon them by the Court was unconstitutional and in contravention of sections 2 to 15 of the Constitution; (ii.) that the imposition of the term of imprisonment for the remainder of their natural lives by the Governor-General after receiving Advice from the Chairman of the Advisory Committee on the Prerogative of Mercy was unconstitutional; (iii.) that the imposition of the mandatory death penalty on them without taking individual circumstances into consideration amounted to inhuman and degrading punishment and treatment.

In the High Court, Justice Benjamin ruled in favour of the Applicants with regards to their sentences. (Bernard Coard and Others v Attorney-General of Grenada (Civil Case No. GDAHCV2002/443A).

The Court of Appeal however, by way of the decisions of Justices Alleyne and Gordon, overturned the decision of Justice Benjamin.

RENWICK & PAYNE

It is most inspiring to be practising law in a region that that was at one point in time controlled by European law, but which now holds its own not only in advancing and developing the law in the Eastern Caribbean, but also providing guidance for the rest of the Caribbean region.

As a young Attorney I am intrigued and inspired by the progress and development of the ECSC over the last 50 years and look forward to what the next 50 years will bring. I am certain that the ECSC will continue its tradition of leading with vision and influence to create positive changes for the entire legal profession.

Congratulations to the Eastern Caribbean Supreme Court.

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(Attorney-General of Grenada v Bernard Coard and Others (Civil Appeal No. 10 of 2004).

An appeal was then made by the Applicants to the Judicial Committee of the Privy Council which ruled in favour of the Applicants with regards to their sentences. The ruling was given on 7th February 2007. (See Bernard Coard and Others v Attorney-General (2007) UK PC7. The Privy Council ruled ‘that it should be declared that the sentence of death imposed upon the appellants was invalid and that the case should be remitted to the Supreme Court of Grenada for the appellants to be sentenced in accordance with the construction of section 230 of the Criminal Code….taking into account the progress made by the appellants during their time in prison.” This decision was consistent with rulings of the regional Court of Appeal and the Privy Council itself since 2002 that mandatory death sentences were unconstitutional. (See Regina v Hughes (2002) 2 AC 259 and Bowe v The Queen (2006) 1 WLR 1623.). There was no doubt as to their convictions, however.

with the necessary deductions, they were to be imprisoned for approximately five more years. Three others were given thirty years imprisonment, so in consequence of the deductions, they walked away free from that moment. (See The Queen v Bernard Coard and Others HC Case No. 19 of 1984, 27 June 2007 (HC-Grenada). It is to be noted that Phyllis Coard, the wife of Bernard Coard and one of the original defendants, was not present at either the pre-trial, the trial or the re-hearing of the sentencing procedure. She was granted leave from imprisonment on medical grounds several years before and relocated to her homeland Jamaica. All the other defendants have since been released from prison.

The dilemma between the ECSC and Grenada over the years has inevitably been most challenging. However, in the final analysis, it may be concluded that the general competence and professionalism of the Caribbean judiciary during that period, did exert a positive influence on our Caribbean jurisprudence.

The High Court of Grenada therefore started a hearing on the resentencing of the convicted persons on 18th June 2007 undertaken

by Justice Belle. Despite the efforts made to have Belle J recuse himself from the resentencing hearing, on the ground that he had close political ties in the past with the convicted persons, he heard the matter and gave his decision on the re-sentencing on 27th June 2007. The principal convicted persons, including Bernard Coard and nine others were sentenced to forty years imprisonment. However,

Wilkinson, Wilkinson & Wilkinson

We, the Partners, Associates and Staff of Wilkinson, Wilkinson & Wilkinson applaud the Eastern Caribbean Supreme Court on having attained its Golden Jubilee. During its existence, the ECSC has distinguished itself through its institutional independence and seminal judgments and has thrived despite its unique circumstances.

We wish the ECSC continued prosperity as it grows from strength to strength.

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FOREIGN INVESTMENT LAW AND THE SMALL STATE: ECONOMIC LURE, OR LEGAL TRAP? INTRODUCTION With the possible exception of Vatican City, virtually all small states need Foreign Investment for development. Consequently, many small states strive for legal arrangements that attract foreign investors. In this quest, momentous and risky legal relationships are created. Such a relationship began in 1994, between the Government of Grenada and Grenada Private Power Limited with WRB Enterprises Inc. This article examines the context of foreign investment law in which this investor-host state relationship was formed and exists, and is now heading to international arbitration.

Foreign investors usually stipulate that their disputes with the host state be resolved by international arbitration, rather than by national courts of the host state. The present example of such a stipulation is found in the Share Purchase Agreement (“the SPA”) between the Government of Grenada (“the GOG”) and Grenada Private Power Limited and WRB Enterprises Inc. (together called “the Investor”). The SPA was executed in September 1994 by the GOG and the Investor.

The GOG sold a majority of the shares in Grenada Electricity Services Limited (Grenlec), 50% of which were sold to the Investor, to privatise the electricity business in Grenada.

THE DISPUTE According to the Investor, the dispute is based on its concern over the GOG’s alleged unilateral approach to reform of the electricity sector.

The Investor complains particularly about the GOG’s enactment of the Electricity Supply Act, 2016 and the Public Utilities Regulatory Commission Act, 2016. The Investor contends that these Acts will cause substantial adverse operational and economic consequences for Grenlec, including the abrogation of the Grenlec licence, which the SPA parties committed to establish as the central aspect of Grenlec’s privatisation in 1994. The GOG disagrees, and maintains that it is carrying out necessary and legitimate legislative reforms in the electricity sector. In effect, the dispute is a test case of the sanctity of an investment agreement (the SPA), versus the sovereign power of a state to legislate in what is perceived to be the public interest.

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by Michael Lindo

As the public disagreement between the Investor and the GOG escalates into a full-blown legal dispute, the overarching question is whether a Repurchase Event has occurred. Article 7.9 of the SPA defines “Repurchase Event” with striking width and depth, that overwhelmingly favour the Investor. In essence, any change in Grenada’s laws or circumstances, or any acts or omissions of the GOG, which directly or indirectly adversely affect the operations and/or profits of Grenlec, may amount to a Repurchase Event.

Based on the public statements of the parties, the relevant provisions of the SPA, and principles of international law, the likely issues for determination by the arbitral tribunal are: (i.) Whether the Electricity Supply Act, 2016 and/or the Public Utilities Regulatory Commission Act, 2016 either individually or collectively caused or amounted to a Repurchase Event. (ii.) Whether there has been any expropriation of any of the Investor’s business or assets by the state of Grenada. (iii.) Whether there has been any annulment, cancellation, limitation, infringement or other impairment of the term, scope or exclusivity of the Grenlec licence by the GOG. (iv.) Whether there has been any repudiation or rejection by the GOG or any State Entity of the SPA. (v.) Whether the ethos of trade liberalisation precludes the Investor’s retention of an exclusive, monopolistic licence to produce and sell electricity in Grenada. (vi.) If a Repurchase Event has occurred, what is the price that the GOG must pay for the purchase of the Investor’s shares in Grenlec.

The SPA indicates that the purchase price for the shares sold to the Investor in 1994 was EC 15 million dollars. The Investor now requires EC 176.65 million from the GOG for its share of Grenlec.

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THE FORUM FOR SETTLEMENT OF THE DISPUTE

CREEPING EXPROPRIATION

By Article 7.9 (c) of the SPA, the parties agreed that any dispute concerning whether a Repurchase Event has occurred shall be resolved by arbitration proceedings conducted in accordance with Sections 11.2 and 11.3. Article 11.2 (a) provides that a dispute shall be settled by arbitration in accordance with the Rules of Procedure for Arbitration Proceedings (“the ICSID Rules”) of the International Centre for the Settlement of Investment Disputes.

Creeping expropriation is also a form of indirect expropriation and involves the use of a series of governmental measures to reduce the economic value of the investment. It occurs because of the cumulative impact of the measures, rather than individual measures which, individually, may not amount to expropriation.

The International Centre for Settlement of Investment Disputes (“ICSID or the Centre”) was established on 14th October 1966 to provide facilities for conciliation and arbitration of investment disputes between states and nationals of other states. The seat of the Centre is located in Washington, DC. ICSID is an institution of the World Bank group. It was established by the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“the ICSID Convention”). Presently, the ICSID Convention is in force for more than 150 States, including Grenada and other Caricom countries. Grenada has been a contracting State of the ICSID Convention since 1991.

THE VEXED QUESTION OF EXPROPRIATION¹ INDIRECT EXPROPRIATION This is one of the more controversial forms of expropriation. It involves taking a governmental measure, whether administrative or legislative, that does not directly take property, but has the same effect by depriving the owner of the substantial benefits of the property.

REGULATORY EXPROPRIATION This has been regarded as another form of indirect expropriation.

Under this type, a measure taken by the host government for regulatory purposes adversely impacts the economic value of the asset owned by the foreign investor sufficient to be deemed an expropriation.

It is often difficult to distinguish between a legitimate exercise of governmental authority that interferes with the business of the foreign investor and regulatory action that amounts to expropriation for which compensation is payable.

Significantly, a regulation that reduces the profitability of an investment but does not shut it down completely and leaves the investor in control, will generally not be seen as an expropriation, even when it gives rise to liability of the host state for violation of national treatment and fair and equitable treatment clauses².

APPEAL UNDER ICSID There is no appeal mechanism under the ICSID Convention. Arbitral awards rendered are to be binding on the parties and not subject to appeal or any other remedy except limited review for Interpretation,

Afi Ventour & Co. The Law Firm of Afi Ventour & Co. joins in with the entire Eastern Caribbean region in expressing our heartiest gratitude and warm congratulations to the Eastern Caribbean Supreme Court on its golden anniversary.

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We are truly grateful for having received fifty (50) years of dedicated and honourable service.

FIAT JUSTITIA 1967-2017

Lucas Street, St. George’s, Grenada 32

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Revision or Annulment of the award³. This is in sharp contrast to the national judicial system, where generally, there is scope for appeal.

Under Article 54 of the Convention, each Contracting State shall recognise an award rendered pursuant to the Convention as binding and enforce the pecuniary obligations imposed by that award within its territories, as if it were a final judgment of a court in that state. It is an ironic twist, that the same national courts which are not entrusted with jurisdiction to decide investorhost states disputes, are required to enforce arbitral awards. Consequently, once an award is made, the web of more than 150 contracting states closes in to ensure enforcement.

It is clearly a situation of real danger for a small, vulnerable state such as Grenada to entrust its fortunes to the decision of an arbitral tribunal which may be wrong and unfavourable for the state, but not subject to appeal.

THE SIGNIFICANCE OF BILATERAL INVESTMENT TREATIES The investor-state dispute settlement mechanism of ICSID inspired the conclusion of a large number of Bilateral Investment Treaties (BITs). The web of similarly designed BITs is central to Foreign Investment Law that impacts investor-host state relationships.

THE US-GRENADA BILATERAL INVESTMENT TREATY In March 1989, the Bilateral Investment Treaty between the United States

of America and Grenada came into effect. It provides for the Reciprocal Encouragement and Protection of Investment in the two nations. Article ii of the Treaty stipulates that investments shall at all times be accorded fair and equitable treatment, enjoy full protection and security and shall in no case be accorded treatment less than that required by international law. Article iii provides that investments shall not be expropriated either directly or indirectly through measures tantamount to expropriation except for a public purpose upon payment of prompt, adequate and effective compensation.

However, BITs have proved to be problematic for some small states. Subedi was comprehensive when he wrote that: “The silent revolution in foreign investment law that took place during the 1960s by way of ICSID and other BIT’s seems to have gained new momentum in the late 1990s and the early 2000s as foreign investors have made the most of the revolution with the help of sophisticated lawyers, legal loopholes and lacunae in the BITs negotiated often under pressure from IMF and the World Bank; messy privatisation programmes managed by often incompetent and corrupt political leaders and government officials; unsound and faulty commercial contracts concluded

by Governments often under the influence of corrupt officials; innovative interpretations of BIT provisions by arbitrators mostly in favour of foreign investors and the demands placed on them by the globalisation of market forces. The silent revolution seems to be in full swing for the benefit of the foreign investor often at the expense of the host states and other societal values”⁴.

CONCLUSION The legal challenges for small states operating within the realm of foreign investment law cannot be legislated away. The multitude of BITs and investment agreements similar to the SPA will prevent that. Conversely, a foreign investor cannot be allowed to prevent the legitimate legislative reforms of a host state.

There are a few fundamental measures that small states can apply or pursue to avoid the trap of a loss of economic and legal sovereignty, and liability for massive monetary awards.

First, a small state should ensure that there are no terms in any agreement with an investor which significantly limit its power to legislate in the public interest.

Secondly, there should be a collective lobby of small states at relevant international institutions such as the World Bank and the United Nations, for an international agreement to attenuate the hardships wrought by BITs on small states.

Thirdly, there should be sustained efforts to make the decisions of ICSID subject to appeal on the merits of the dispute. Meanwhile, small states should beware that the lure comes in the same package with the trap.

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YEAR IN REVIEW 2016 - 2017 JULY 2016

• GBA’s AGM- Election/ hand over to the new Executive • GBA’s Jury Assessors Committee rep announced • Bench Bar Committee commences

AUGUST 2016

• President’s Carnival Mixer • Start up of Committees and Programmes

SEPTEMBER 2016

• Courtesy Call on the Honorable AG • CLE meeting in Antigua- Lady Anande Joseph • Opening of Law Term • Law fair and OECS Conference St. Lucia • GBA rep selected for representation on GNCRC • Family Fun Day GBA/SCR/RGPF and SGU • Representation on Mediation Committee

OCTOBER 2016

• Law Week- week of activities: Prayer Breakfast, Pro Bono day, Presentations to Father Mulligan’s Home, Prison visits, TAMCC Debate, Cocktail Party, Games Night, Presentation to PBC. • Civic Education on Constitutional reform begins

NOVEMBER 2016

• Civic Education on Constitutional reform continues • GBA, FIU collaboration, presentation on: Anti Money Laundering

DECEMBER 2016

• OECS Bar Meeting Anguilla-Jasmin Redhead • Christmas Court Surprise

JANUARY 2017

• GBA and Hash Harriers Fundraising activity • Extraordinary General Meeting • Farewell Social for Hermione Clyne • Commencement of representation on AML Network

FEBRUARY 2017

• Special Sitting for 50th Anniversary of the ECSC

MARCH 2017

• Meeting of OECS Bar Association in St. Vincent- Rohan Phillip • Jurist Project Training Program on Sexual Offences • UNODC’s Training on the UN Convention Against Corruption • Meeting with Honourable AG re implementation of the Juvenile Offenders Act • IAGDO Workshop on National NGO Legislation

APRIL 2017

• National Risk Assessment on Anti-Money Laundering/ Combating the Financing of Terrorism • Jurist Project Consultation,Trinidad -Sheriba Lewis • Sir Archibald Nedd Memorial Lecture

MAY 2017

• Ben Jones Public Education Forum

JUNE 2017

• Law Clerks Seminar • Continuing Legal Education Seminar

JULY 2017

• Launch of Robing Room • Launch of GBA’s new logo • Launch of 50th Anniversary Special Edition of Oyez Oyez Magazine • Dinner Theatre and Award Ceremony

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CIVIL PRACTICE & PROCEDURE

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The Enforcement of a Money Judgment

By Sabrita Khan-Ramdhani & Darshan Ramdhani

after 12 years in Grenada in context of Section 30 of the Limitations of Action Act Cap 173.

In this brief article, the writers propose to address whether money judgments are barred by the statutory limitation periods existing in Grenada. A secondary question is whether the limitation provisions capture both a new action to enforce the judgment as well of enforcement within the same action in which the judgment is granted.

or his or her agent; and in that case no such action or other proceeding shall be brought but within twelve years after the payment or acknowledgment, or the last of the payments or acknowledgments, if more than one, was made or given.”

DISCUSSION

A writ of execution may not be issued without permission where – a. Six years have elapsed since the judgment was entered;

We submit that the key to the answer of the first question lies in a proper interpretation of section 30 of the Limitation of Actions Act 173 in context of its operation with Rule 45.2 of the Civil Procedure Rules 2000.

Section 30 reads: “30. Money charged upon land and legacies to be deemed satisfied at the end of twelve years if no interest paid No action or other proceeding shall be brought to recover any rent, annuity, or other periodical payment charged upon or payable out of any land, or to recover any sum of money secured by any mortgage, judgment or lien, or otherwise charged upon or payable out of any land or rent, or any legacy whether so charged or not, but within twelve years next after a present right to receive it has accrued to some person capable of giving a discharge for or release of it, unless in the meantime some part of the principal money, or some interest thereon, has been paid or some acknowledgment of the right thereto has been given, in writing, signed by the person by whom it is payable, or his or her agent, to the person entitled thereto,

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CPR Rule 46.2 (a) reads:

As the heading of the section 30 expressly states, when the word ‘judgment’ appears in this section it really relates to judgments that are charged against either the land or any legacy of the defendant. Under English law, it also applied to money judgments since by the Statute of Westminster any such judgments was held to bind one half of the judgment debtor’s lands. As was noted by Lord Lloyd of Berwick in Lowsley and Another v Forbes [1998] 3 All ER 897 speaking of the contextually similarly worded section 40 of the Real Property Limitation Act 1833: “The reference to “judgment” may seem out of place in the context of mortgages and liens.

But the explanation is that under the Statute of Westminster the effect of a judgment was to bind one-half of the judgment debtor’s freehold lands. Execution was by writ of elegit, whereby the judgment creditor was put in possession of half the rents or profits. It was natural, therefore, for the Real Property Limitation Act to apply to judgments binding the debtor’s real estate as it applied to mortgages and liens.”

Whilst the Statute of Westminster has not been incorporated into the laws of Grenada, section 63 of the Civil Procedure Act Cap. 55 states clearly that: “Every order of the Court for the payment of money shall bind the land of the person against whom it is made, in the same manner and to the same extent in every respect as a decree for money.” ¹ It is therefore submitted that, the use of the word judgment in section 30 of the Limitation of Actions Act, is not at all out of place, and would relate to any judgment that operates to bind land in any way, and this would by virtue of section 63 of the Civil Procedure Act include money judgments.

This conclusion does not detract nor is it in any way inconsistent with section 19 of the Civil Procedure Act which provides as follows: “19. Execution may issue within six years As between the original parties to a judgment, execution may issue at any time within six years from the recovery of the judgment.”

This section speaks to the execution of a judgment and speaks specifically to the execution of a judgment at any time within the period of six years. It is instructive to note that this section does not state that no execution shall lie beyond that six year period. This being the case, it would be wrong to assume that parliament would have meant that after six years had elapsed an absolute bar was created to the execution of any judgment thereby by some implication destroying the right of a judgment creditor to recover on his judgment.

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The position must then be that all money judgments are caught by section 30 of the Limitation Act. Within the first six years, a judgment creditor has the absolute and unconditional right to enforce that judgment – Section 19 of the Civil Procedure Act. Thereafter, the judgment creditor must seek the court’s permission to enforce that debt – the discretionary bar of CPR 46.2 (the operation of Lamb v Rider). Where the period of 12 years has elapsed, then the judgment creditor may not enforce the judgment unless one of the sustaining events such as an acknowledgement of the debt in writing has taken place – the operation of section 30 of the Limitation Act. It is likely that a court will hold that the burden is on the judgment creditor to prove that one of the sustaining events have taken place.

Do the limitation provisions capture both a new action as well as enforcement with the same action?

A close examination of section 30 of the Limitation of Actions Act shows that it allows for a wide interpretation and permits the recovery on a judgment not only by way of a fresh action but also by ‘any other proceedings’.

In Lowsley and Another v Forbes, the English House of Lords was called upon to interpret section 24 of the Limitation Act 1980 UK. This section reads in full:

to recover on the judgment. To do otherwise would be to conclude that parliament has used unnecessary words in the legislation; there is a presumption against this.

1.

“An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.

2.

No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.”

In following this reasoning, it would therefore mean that any proceedings in court would fail to be caught by the section, including enforcement proceedings on a judgment. What reinforces this view is that the section states that the proceedings shall not be brought to ‘recover any sum’. In this regard our section 30 appears to have provided for even enforcement proceedings having regard to the words used in the section. This would then mean that the limitation provisions capture both a new action and enforcement within the original proceeding.

The House of Lords held that the key to this section was the use of the word ‘action’ and held that as used in the section the word did not include enforcement proceedings.

Our section 30 is wider than the English section 24, and stipulates that ‘no action or other proceedings’ shall be brought to recover…” any sum secured by a judgment….” To make practical sense of this provision, some different meaning would have to be ascribed to the phrase ‘other proceedings’, in the sense that it must mean something other than a new action

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Heartiest congratulations on your significant milestone.

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We are proud to be practicing during this historic period.

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We at Ramdhani & Associates wish to extend our heartfelt congratulations to the OECS Courts on its achievement of Celebrating 50 years.

RN

RAMDHANI & ASSOCIATES FIAT JUSTITIA 1967-2017

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The Caribbean

Court of Justice

& ‘Community Rights’

T

he Revised Treaty of Chaguaramas¹ (“the Treaty”) governs CARICOM, which is the multilateral grouping of twenty Caribbean countries. The Treaty sets a framework, which facilitates trade and market integration. It establishes rights and responsibilities among member countries and the mechanisms of redress where these rights or obligations are violated. The Treaty gives the Caribbean Court of Justice (CCJ or the Court) the exclusive jurisdiction to determine matters concerning violations of these rights or obligations- the ‘original jurisdiction’. This is distinct from its ‘appellate jurisdiction’, as a final appeal court for some CARICOM countries. The court’s exclusive jurisdiction applies to all CARICOM countries, whether or not they have accepted its appellate jurisdiction.

The CCJ’s original jurisdiction was set up to accommodate disputes between CARICOM countries. Nonetheless, more and more, private individuals have been accessing the court’s original jurisdiction, seeking redress for violations of rights, arising under the Treaty. This seems strange, as the articles of the Treaty are generally worded to create rights and obligations for member states,not individuals. However, the CCJ has established that individuals within CARICOM have ‘correlative rights’, inferred from obligations imposed on member states. For example, articles 45 & 46 of the Treaty, commit member states to the goal of free movement of their nationals within CARICOM. The mechanisms allowing individuals to access the court’s original jurisdiction are further discussed in this article.

LOCUS STANDI OF PRIVATE INDIVIDUALS BEFORE THE CCJ

Based on the court’s procedures, before an individual’s case is substantively heard, they must make a preliminary application for ‘locus standi’² . To succeed, that individual must meet four criteria³ referred to as the four limbs in this article. They are:1.

That the Treaty intended that a right conferred by the treaty enured⁴ to the benefit of the applicant directly.

2.

The applicant has been prejudiced in respect of that right.

3.

The CARICOM country of which the applicant is a national has:-

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By Richie Maitland

a. Omitted to, or declined to bring a case on the applicant’s behalf b. Or has agreed with the applicant that they may pursue their own case 4.

The interest of justice required that the claim be heard.

DISCUSSION OF RECENT CASES In the Shanique Myrie v Barbados⁵ case, the Court found that this commitment created a correlative right, held by nationals of member states, to freedom of movement. Ms. Myrie successfully argued that this right was violated by Barbadian officials who treated her badly at the airport upon her entry into Barbados.

The OECS Bar recently condemned Dominican Attorney-at-Law, Cabral Douglas, for his scathing attacks on the CCJ. The case eliciting those attacks - Cabral Douglas v The Commonwealth of Dominica⁶, a preliminary hearing for locus standi before the court, illustrates the application of the above requirements. Mr. Douglas, a Dominican living in Dominica was also an event organiser, who had organised a local event. He had contracted the controversial dancehall artist ‘‘Tommy Lee⁷” as the main performer. Dominican immigration authorities denied Tommy Lee’s entry into the country for the performance, resulting in significant financial losses for Mr. Douglas.

He invoked article 7 of the Treaty⁸. However, to be considered are: Article 36 of the Treaty prohibits new restrictions on the provision of services in CARICOM by nationals of *other member states. Article 37 requires the removal of discriminatory restrictions. Further, Article 45 commits CARICOM members to the goal of free movement of their nationals within the Community.

In response, the Court first reiterated that the aforesaid four limbs carried different standards of proof. Finding that for the first two limbs, an ‘arguable case’ had to be made out, while the last two limbs had to be proven to the court’s ‘complete satisfaction’.

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The court then looked at the rights invoked

by Mr. Douglas and found that:1.

‘Non-discrimination’ under article 7 referred to non-discrimination against a national of another member state

2.

The legislative provisions under which Tommy Lee was denied entry were old, pre-existing ones, and not ‘new’ restrictions captured by art. 36.

Further, the restrictions contemplated by art. 36 were restrictions on crossborder services (as opposed to national services). However, it was determined that Mr. Douglas was a national service provider

3.

The applicant failed to allege facts supporting his invocation of art. 37, and,

4. The aspiration to freedom of movement (art. 45) and right to freedom of movement (art. 46) did not apply to the applicant as a national of Dominica, as his movement had not been affected.

For those reasons, the court found that the first two limbs were not satisfied and didn’t consider the other limbs. Mr. Douglas was therefore denied standing. It is submitted that probably, Tommy Lee himself would have succeeded, had he been the applicant.

2.

He at least had an ‘arguable case’ that he was prejudiced by the mere existence of the impugned immigration sections

3.

His country Jamaica had refused to espouse the claim on his behalf, and,

4. The interest of justice required the claim be heard The four limbs were satisfied and Mr. Tomlinson was granted leave to bring the substantive application. The substantive hearing produced what some may call a compromise judgment. The court found that:1.

Homosexual CARICOM nationals could not be prohibited by law or otherwise, from entering any CARICOM country.

They had the same rights under the Treaty as all other CARICOM nationals, including the right to freedom of movement, and the right to not be discriminated against on the basis of nationality. This latter right was relevant because Trinidadian and Belizean homosexuals could not be prevented from entering their own countries while the law purported to prohibit homosexuals from other countries, including other CARICOM countries.

2.

However, the construction of a domestic statute in the context of an international dispute required the court to examine state practice. Because homosexuals, as a matter of practice, were not prevented from entering those countries, there was no violation of the rights invoked.

The court, in arriving at the latter conclusion, used World Trade Organisation (WTO) and other trade tribunal precedent; applying a trade dispute model of analysis. This is perhaps because the Treaty is more a trade dispute instrument than a Charter of Rights.

The human rights model of analysis, as seen in the European Court of Human Rights , United Nations Human Rights Committee Rights and even Caribbean Courts , holds that the mere existence of discriminatory legislation is a violation of rights, irrespective of state practice.

As we see, there are mechanisms within CARICOM and the Treaty, which allow individuals to seek redress from the Court for rights which they enjoy as CARICOM nationals. As more and more people seek to access and enforce those rights, some extremely interesting jurisprudence emerging from the CCJ’s original jurisdiction is anticipated.

The Douglas case is compared to the joint cases of Maurice Tomlinson v The State of Belize and Maurice Tomlinson v The State of Trinidad and Tobago⁹. Here, the applicant, a Jamaican homosexual man, sought locus standi to challenge immigration provisions in Belize and Trinidad and Tobago, which prohibited the entry of homosexuals into those countries. He invoked article 46 of the Treaty, which provides for the free movement of nationals within CARICOM. The court found that:1.

As a CARICOM citizen who was a nonnational of either of the respondent countries, the right to free movement enured to him directly

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The Goodyear Sentencing Indication

by Darshan Ramdhani

– A crucial tool in the Criminal Justice System – INTRODUCTION Wherever it is used properly the Goodyear Sentencing Indication is proving to be a useful tool in the criminal justice system for the region’s courts. Some of the jurisdictions – St. Lucia and St. Vincent and the Grenadines - have the benefit of Practice Directions issued by the Chief Justice, which have put in place, formalised rules grounded in the common law developments.

Those jurisdictions without the Practice Directions continue to apply the common law rules and some have been utilising the formal rules of the Practice Directions.

What is the purpose of the Goodyear Sentencing Indication? In R v Goodyear [2005] 1 WLR 2532, notwithstanding a previously enduring resistance to giving such indication, the English Court of Appeal recognised that when properly done, a sentencing indication was of considerable advantage for the criminal trial process. The Court of Appeal went as far as formulating guidelines stating: “The objective of these guidelines is to ensure common process and continuing safeguards against the creation or appearance of judicial pressure on the defendant. The potential advantages include, first and foremost, that the defendant himself would make a better informed decision whether to plead, or not. Experience tends to suggest that this would result in an increased number of early guilty pleas, with a consequent reduction in the number of trials, and the number of cases which are listed for trial, and then, to use current language, “crack” at the last minute, usually at considerable inconvenience to those involved in the intended trial, and in particular, victims and witnesses.”

WHAT DID GOODYEAR DECIDE? The five- judge’s decision of the Court of Appeal delivered by Lord Woolf CJ in R v Goodyear [2005] 1 WLR 2532 found that it was quite proper for a judge to respond to a defendant’s request

that he be told the maximum sentence that may be imposed on him if he pleads guilty to the offence. It was held: “A defendant’s plea must always be made voluntarily and free from any improper pressure. However, if a defendant in the Crown Court personally instructed his counsel to seek an indication from the judge of the maximum sentence which would be imposed if he pleaded guilty at that stage, the judge could respond to that request. The judge could also, if appropriate, remind defence counsel in open court of the defendant’s entitlement to seek such an indication.

If, notwithstanding any observations by the judge, the defendant did not seek such an indication, it would not be appropriate for the judge to give any indication other than that, whether the defendant pleaded guilty or not guilty, the sentence would or would not take a particular form.

Guidelines were provided related to the role of the defence, the prosecution and the judge. The OECS courts have been utilising these principles and the guidance given by the Practice Directions which states that: “The purpose …is to establish the procedure following the principles in R v Goodyear [2005] EWCA Crim. 888 for an indication by a judge prior to the commencement of the trial of hearing in criminal proceedings of a likely sentence a defendant if he or she pleads guilty at that point in time.”

Grenada’s criminal courts are also moving towards full compliance with these directions.

ROLE OF THE DEFENCE AND THE PROSECUTION For defence lawyers, it would be proper that defence attorneys also have their clients give them a written authorisation making it clear that they understand the process and the consequences, and that they are willing participants. In this regard the defence attorney should discuss the details of the case with the defendant giving him realistic and forthright advice. At the end of it, it must be the defendant who makes the decision and not the attorney.

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“In our judgment, if the Crown, by whatever means the Crown is prosecuting, make representations to a defendant on which he is entitled to rely and on which he acts to his detriment by, as in the present case, pleading guilty in circumstances in which he would not otherwise have pleaded guilty, that can properly be regarded as giving rise to a legitimate expectation on his part that the Crown will not subsequently seek to resile from those representations, whether by way of the Attorney General exercising his personal statutory duties under section 36 or otherwise. For this purpose the Crown and its agents are indivisible.”

It is important that there be an agreed statement of facts related to the offence. This imposes an obligation on the prosecution and the defence to settle this before an indication is sought.

ROLE OF THE JUDGE

A T T O R N E Y S - A T - L A W

The Law Firm of Francis K. Paul & Associates extends congratulations and best wishes to the ECSC on this your 50th anniversary, commemorating 50 years of dedicated service, we look forward to the next 50.

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The court may not provide such an indication without a formal written application for one.

Where there is no application it is of course open to the judge to indicate to defence

Francis K Paul & Associates

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It is up to the trial judge to decide whether or not to give a sentencing indication. He has unfettered discretion in this regard and is not required to provide reasons for so doing, though it would be expected that he exercises this discretion on sound judicial principles.

The judge is quite within his power to have discussions on the record in the presence of the defendant, short of an indication, in terms of exploring what would be the range of sentence for the offence before the court. See R v Cochrane (Andrew) (2012) [2012] EWCA Crim. 244.

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An example of this impermissible ‘plea bargaining’ is found in the case in Attorney General’s Reference No 44 of 2000 (R v Peverett) [2001] 1 Cr App R(S) 132. In giving the judgment of the court Rose LJ observed:

The point has been made that the judge is nonetheless entitled to use his own initiative in certain situations. One such situation is where he considers that the sentence that he is likely to impose after trial would be the same as that following a guilty plea. See R v Nightingale (Danny Harold) [2013] EWCA Crim. 405.

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What the prosecution is not to do is either tell the defendant that he will seek a particular sentence if he pleads guilty, or in any way acquiesce or encourage the court to pass such a sentence (for example a non-custodial sentence.)

counsel that he is entitled to make use of the procedure available to seek an indication if the defendant so wishes. Where the defendant declines the invitation, the judge ought not to give or insist on giving any indication as to sentence. See R v Nightingale (Danny Harold) [2013] EWCA Crim. 405

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The prosecution is not to initiate a request for a sentencing indication, he is to react to such an application.

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AS IS NOTED BY PD RULE 3.4 “A sentence indication should be confined to the maximum sentence to be imposed if a plea of guilty were to be tendered at the stage of the proceedings at which the indication was sought. The judge should not indicate the maximum possible sentence following conviction after trial.”

The indication must be precise and in clear language without room for ambiguity.

It is recommended that the court allow the defendant a reasonable opportunity to consider his course of action after the indication.

‘Once an indication has been given, it is binding and remains binding on the judge who has given it, and it also binds any other judge who becomes responsible for the case.’ See R v Goodyear.

The sentencing indication should always be done in open court. If it is in the rare case done in chambers it should be in the presence of both sides and it must be recorded. See AG`s ref: 118 of 2014, R v S (P C) (2014) [2014] EWCA Crim 2898; See PD Rule 5.1 and 5.2 In Alistair Stanislaus v R (Court of Appeal - Grenada), the defendant was before the court on a number of charges of armed robbery. The

indication was given in chambers, and in the absence of the defendant.

There was no recording made of the indication, nor were they any contemporaneous notes. His attorney then told him that the judge would consider only a maximum of 12 years. After his plea, he was sentenced to 12 years, but then was given a 10 year sentence to run consecutively, requiring him to serve a total of 22 years. On appeal, even though there was affidavit evidence from the prosecuting attorney who had been in the judge’s chamber when the indication was given that the judge had never said that he would not get concurrent sentences, the State actually conceded that the process had been unfair. The State conceded that the Court of Appeal would be proper to vary the sentences and to make all the sentences to run concurrently. This case exemplifies the need to ensure that the process is properly done.

CONCLUSION This tool of the criminal justice process continues to play an ever increasing role in the trial process. It saves the courts resources and increases confidence in the timely delivery of justice.

Thus whenever the process is employed, the parties to the process must always seek to ensure that the process is transparent and in consonance with open justice. There should be no pressure on a defendant to plead whether by the defence lawyer, the prosecution or the court.

We salute the Eastern Caribbean Supreme Court on having achieved this incredible milestone of having served the people of the Eastern Caribbean for 50 years with integrity, transparency and unparalleled competence in the face of sometimes seemingly insurmountable challenges. The Court remains an unshakeable pillar that exemplifies the best spirit of regionalism and unity within the Eastern Caribbean. It reminds us that remarkable achievement is attainable and sustainable for the people of the Eastern Caribbean when a united and non-parochial approach is taken to solving the challenges of small island nations.

The Court has served us with distinction and has allowed us to lay claim to a jurisprudence that has far exceeded our expectations. We continue to look to the Court as a guidepost to direct our legal travels.

We Toast to the Court!!

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THE CREDIT UNION OF GRENVILLE

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CONTEMPT, SWORD

OF DAMOCLES

by Derick F. Sylvester - Principal, Derick F Sylvester & Associates

“Justice Sir, is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together.

Wherever her temple stands, and so long as it is duly honoured, there is a foundation for social security, general happiness and the improvement and progress of our race. And whoever labours on this edifice with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise it’s august dome still higher in the skies, connects himself, in name and fame and character, with that which is and must be as durable as the frame of human society”-Daniel Webster (Funeral oration on Mr. Justice Story 1845)

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he dispensation of justice in a democratic society and in an adversarial system is often fraught with adrenaline powered zeal, vigour and legal anxiety. Despite this reality the dignity and nobility of the legal profession must be maintained and a breach and/or derogation can lead to erosion of public confidence in its administration, and the vapourising of its nobility.

The Legal Profession Act (Grenada) No.25 of 2011 codified the OECS Code of ethics. For present purposes Schedule (iii) Section 37 states: 1. An Attorney-at-Law shall maintain a respectful attitude towards the court, and shall not engage in undignified or discourteous conduct which is degrading to the court.

2. An Attorney-at-Law shall encourage respect for the courts and the judges.

3.

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An Attorney-at-Law shall support judges and Magistrate against unjust criticisms.

4. Where there is ground for complaint against a judge or magistrate an attorney-at-law may make representation to the proper authorities and in such cases, the attorney-at-law shall be protected.

5.

In the dispensation of Justice judges are sometimes faced with criticisms, complaints, character assassination and in some instances behaviour from the bar deficient in courtesy.

Despite judges being armed with the sword of criminal contempt in preserving and protecting the sanctity of the justice system and ultimately the judiciary, the shield of the public criticising the administration of justice; temperately, fairly and in good faith should be allowed.

In instances where improper motives and condemnation without merit are imputed the contemnor will not be protected from the ‘contemptuous sword of Damocles’. This was succinctly enunciated by the Privy Council in Ambard v. AG of Trinidad and Tobago [1936] AC 322 Lord Atkin p.335:

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“But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticizing, in good faith, in private or public, the public acts done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein, provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”.

with the due course of justice or the lawful process of the court is a contempt of court. The former class belongs to the category which Lord Hardwicke L.C characterize as “scandalizing a court or a judge.” (1) That description of that class of contempt is to be taken subject to one and an important qualification. Judges and courts alike are open to criticisms, and if reasonable arguments or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of court. The law ought not to be astute in such cases to criticize adversely what under such circumstances and with such an object is published; but it is to be remembered that in this matter the liberty of the press is no greater and no less than the liberty of every subject of the queen”.

A very erudite explanation of matters amounting to interference with the administration of justice and an expressway to criminal contempt was elucidated by Lord Russel of Killowen CJ in Re Gray [1900] 2 QB 36 at page 39 as follows:

I urge my colleagues within and without the jurisdiction to be forever reminded of our sacred duty to the court and the public at large. What we do and say should be characterized by honesty, integrity, discipline, transparency and honour; so that we would all leave an honourable legacy in the judicial sands of time.

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It was Ellis Rubin who scribed: “Being a lawyer is about serving justice. That’s not only our greatest calling, it’s our only calling’.

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‘Any act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere

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For 50 years, the Eastern Caribbean Supreme Court has been the standard for the proficient and equitable dispensation of justice in our Commonwealth of Nations.

The firm of Derick F. Sylvester & Associates applauds the Court on 50 years of sterling service to the people of the OECS. Principal: Derick F. Sylvester Associates: Cathisha L. Williams Hazel B. Hopkin

DERICK F. SYLVESTER & ASSOCIATES #495 Lucas Street St. George’s, Grenada, W.I.

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THE COURT, THE CONSTITUTION

by Dr. Francis Alexis, Q.C.

AND NATIONAL DEVELOPMENT

JUBILEE CELEBRATED ocus here is on a particular role played in nine Eastern Caribbean (‘EC’) Commonwealth countries, six independent states¹ and three non-independent British overseas territories,² by the Eastern Caribbean Supreme Court (‘ECSC’). So the Court is styled today,³ mainly;⁴ evolved from its original designation in 1967;⁵ comprising an itinerant Court of Appeal and a High Court of Justice. That role is the interpreting of the Constitution of its nine participating countries for national development and individual self fulfilment, subject to oversight cast by the United Kingdom Privy Council (‘UKPC’). This is in celebration of the golden jubilee of the Court just gone, fifty years having passed by in Feb 2017 since its establishment; from founding Chief Justice Sir Allen Lewis through an array of Chief Justices as Sir Vincent Floissac and Sir Dennis Byron and other judges to the present Bench led by Chief Justice Dame Janice Pereira. On its fortieth anniversary in 2007, it was described as a model regional court.⁶ That accolade endures.

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NATIONAL DEVELOPMENT The term ‘national development’, or ‘development’ widely, is a comprehensive economic, social, cultural, political and juridical process, as acknowledged by the United Nations (‘UN’).⁷ This has been elaborated on by the UN Development Agenda to include, on the material side, sustainable economic growth with increasing revenue from greater diversified production of goods and services on full employment. This should yield social enhancement securing such amenities as education, housing and healthcare; reducing poverty, hunger and disease.⁸ The UN Development Agenda requires in its juridical perspective the refining of freedom. A country is to govern itself free from outside overlordship. An individual is to enjoy fundamental human rights and freedoms (‘human rights’), subject to limitations rationally prescribed under the rule of law, in a liberal democracy; this is ‘liberal democratic freedom’.⁹ These virtues are embedded into EC Constitutions, presenting the supreme law of the land.¹⁰ This is entrenched against alteration by an ordinary Act of Parliament¹¹ and guarded by the Court consisting of an independent Judiciary, shielded from Parliament and the Executive by the separation of powers,¹² as key of the principal elements of parliamentary democracy.

These are characteristics quite familiar to the Westminster model constitutions exported by the UK across the Commonwealth.¹³ INHERENT EC Constitutions, like other typical Commonwealth Constitutions, do not expressly address ‘development’ as such. The provisions of each EC Constitution protecting human rights, endearingly called the Bill of Rights, manifest the need to accommodate development. The guarantee to protection against arbitrary entry on private premises and the search thereof by agents of the state yields to measures which are reasonably required in the interest of the ‘development or utilization of property…to promote the public benefit’, which means, no doubt, a ‘purpose beneficial to the community’.¹⁴ Protection from deprivation of property bows to the taking of possession, or the acquisition, of land for the carrying out thereon of work relating to ‘agricultural development or improvement’.¹⁵ Several other human

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rights are subject to limitations in the ‘public interest’¹⁶ or for ‘public purposes’.¹⁷ It is not necessary for the state itself to carry out a project for this to serve a public purpose. ‘A public purpose may be achieved through private enterprise at the instance of a private entrepreneur whose sole aim may be to make profit’. This was said in 1998 by Byron CJ (Ag),¹⁸ who has since become the President of the Caribbean Court of Justice (‘CCJ’). It follows that property may be compulsorily acquired by the state from one person and handed over to another person for the attainment of a public purpose, once this is done circumspectly.¹⁹ Also relevant here are two other principal dynamisms, both in the general part of the Constitution, that is, the part of the Constitution comprising all the provisions other than those in the Bill of Rights.

One is the role of Parliament to make laws. These include ordinary laws for ‘peace order and good government’.²⁰ This, conferring on Parliament the ‘plenitude of the legislative power of the sovereign’,²¹ is a mandate for Parliament to decide policy for national development, subject to the Constitution. They all embrace higher laws for the alteration of the Constitution.²² The other dynamism in the general part is the responsibility of the Cabinet of Ministers to advise the Head of State in the government; which means deciding the general direction and control of the Government.²³ This, constituting Cabinet or the Government, the actual wielder of the executive authority of the state,²⁴ with power really to exercise the prerogative, is

authority for Cabinet to decide policy from day to day for national development, subject to the Constitution. These arrangements, in both the Bill of Rights and the general part, are all founded implicitly on a commitment to fostering national development. It is, accordingly, readily recognised that Constitutions are on mission to promote national development.²⁵ It is equally acknowledged that in exported Westminster model constitutions, the Courts are the guardians of the Constitution, having a duty to decide whether Acts of Parliament or actions of the Executive are consistent with the Constitution, and so valid; or inconsistent with the Constitution, and so void.²⁶ This does not make the Court the arbiter on what is good or right for national development. Indeed, it is often pronounced that courts are not concerned with questions of policy, that policy is for Parliament and Cabinet, that the duty of the courts is to interpret the Constitution.²⁷ If this should not be taken too literally too far,²⁸ its value is that it emphasises that the function of the Court is to interpret the Constitution and determine whether a measure of the political directorate (Government and Parliament) or of other public entities is, or is not, consistent with the Constitution.

BALANCE WHEEL Development requires peace and order, if investors whether local or foreign are to plough their capital into a country, not least in the EC with modest resources. Development also, though, calls for good

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Heartfelt Congratulations on this auspicious anniversary of the Eastern Caribbean Supreme Court.

We wish the Court continued success in the due administration of justice throughout the region.

We hope that the Court’s adjudicative prowess shall continue as long as the Court is in existence.

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government, good governance. It needs respect for human rights.

It presupposes equality and justice. The Constitution subsumes all these principles. Whether they are honoured in any particular situation is a matter for the interpretation of the Constitution, the ultimate responsibility for which rests with the Court. According all these factors their right due obliges ECSC to operate a balance wheel.

BILL OF RIGHTS That balancing exercise has to be carried out often regarding the Bill of Rights. Disorder is apt to deal destruction of property, if not loss of lives. However, the Constitution guarantees freedom of expression.

So people may genuinely oppose government policy to undermine public confidence in the conduct of public affairs by Government.²⁹ An overbroad prohibition may not be cast to prevent public officers from discussing political affairs whether of national or international character.³⁰ The press may not be pressed down by muzzles masked as tax collecting devices or licensing regimes.³¹ Peace and order profit from the constitutional protection of the law, also known as the due process of law, incorporating common law principles of natural justice. Thus, ECSC readily holds that the decision of a decision-maker risks being vitiated for breach of the rule against bias; on the current formulation, if, on the position of a decider, or something said or done by him, a fair-minded and informed observer, properly considering the facts, on a balanced approach, concludes there was a real possibility that the decider was biased.

This was applied even to a sitting judge on 7 Mar 2017.³² Development

means that the state is able to take possession of private property, or compulsorily acquire ownership thereof. This is so for economic development as for projects in agriculture³³ or tourism;³⁴ or to produce revenue³⁵ or to generate employment;³⁶ or for social development as in housing.³⁷ Equally, though, Government must be prepared to pay due compensation, and for this the accounting functionary is, not the Permanent Secretary, but the Minister of Finance, who must open up the Consolidated Fund, on pain of punishment for contempt.³⁸ There has to be fairness in allocating licences. So, an application for an FM radio broadcasting licence may not be cold-storaged indefinitely, in effect refused, just because the applicant does not support the Government, when there is freedom of communication as part of freedom of expression. It was unfortunate that this point was missed by ECSC, leaving the matter to be corrected by UKPC,³⁹ with UKPC setting out on a path then unknown, unexplained, entirely unpredictably.⁴⁰ After all, when a goods import licence was refused because the applicant did not support the Government, ECSC by itself rejected this.⁴¹ A state-owned radio shut down a call-in programme, over the objection of its host. He got this rejected by Saunders J, later a founding CCJ Justice. This decision was reversed by the Court of Appeal, but it was restored by UKPC.⁴² Market Theory With technology being crucial to development, instructive is what happened to a move by Dominica to introduce competition in the telecommunications field in 1996. To implement an accord between

CONGRATULATIONS The rule of Law is the single most important principle in civilized societies; and at the heart of this principle is the integrity and independence of the Judiciary.

As I reflect on the past fifty (50) years at the Bar and in the context of the aforementioned principle, I can safely say that the people of the OECS are in good hands with regards to the judicial system.

It is with great pride and optimism that I, on my own behalf and that of the Law firm of St. Louis & St. Louis, extend congratulations to the Chief Justice, Judges and all staff of the ECSC, on attaining this milestone, 50 years in existence.

We have all reason to be proud of our Courts dispensing justice to the people of the region.

As we celebrate this achievement, it should also be a time for reflection. A lot has been achieved but we must remain eternally vigilant, to maintain the gains that have been made and guard against insularity, nepotism, mediocrity and finally political interference of the judiciary. Onwards to 50 more years.

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Government and Cable & Wireless (West Indies) Ltd (‘CWWI’) in 1995, Parliament passed an Act in 1995 to authorise the granting of an exclusive licence to Cable & Wireless (Dominica) Ltd (‘CWD’) to provide national and international telecommunications services in, to and from Dominica. Under the Act, the Minister in 1995 granted CWD an exclusive licence, entailing an extensive monopoly in CWD for 25 years. Marpin Telecoms & Broadcasting Co Ltd (‘Marpin’), a provider of internet services in Dominica, previously having an arrangement with CWD, decided to use satellite facilities alternative to CWD’s network. CWD retaliated by withdrawing from Marpin toll free 1-800 numbers which enabled Marpin’s customers to have internet access. So Marpin sought declarations that the Act and the licence contravened freedom of communication, in the freedom of expression guaranteed by s 10(1) of the Constitution. Marpin convinced Cenac J in the High Court, who was upheld by the Court of Appeal in a judgment delivered

by Redhead JA concurred in by Singh JA and Mathew JA(Ag).

That Marpin’s freedom to communicate ideas and information through telecommunications guaranteed by s 10(1) was hindered by CWD’s monopoly was acknowledged by UKPC. But, UKPC proceeded, in Cable & Wireless v Marpin Telecoms & Broadcasting,⁴³ to have been considered was the counter argument that the economic and other circumstances of Dominica might mean that, even if Government and CWD had a financial interest in exclusivity, a monopoly cross-subsidising its services might be be reasonably required for the purpose of protecting the rights and freedoms of the people to communicate freely.

If that argument was made out, it was left to Marpin to show that the monopoly was not reasonably justifiable in a democratic society.

In order for the matter to be reconsidered in light of those principles,⁴⁴ UKPC remitted the matter to the High Court. ECSC would have let competition prevail in promoting freedom of communication. But UKPC conceived of a theory of the market in which monopoly might triumph.

UKPC rejected as inhuman the carrying out of a death sentence after inordinate delay, initiating the Pratt reformation.⁴⁵ Next, first for the Caribbean, the inhumanity in imposing the death sentence mandatorily was articulated by the ECSC, Byron CJ and Saunders JA, Redhead JA dissenting.⁴⁶ GENERAL PART A government, planning for re-election, is anxious to show capital formation, resource mobilisation, revenue generation and employment creation. It comes up with a development project. An opposition, no doubt well-intentioned, might see such a project negatively. If the scheme is not inconsistent with the general part of the Constitution, and does not infringe any human right, ECSC would not condemn it. This stance on development has been maintained by ECSC time and again.⁴⁷ Development is not only about money flows and physical infrastructure. It very much also concerns sociology and psychology.

The entrenchment provisions of the St. Lucia Constitution, in s 41(7)(a), says that its subsection stipulating referendum approval for the alteration of the Constitution shall not apply to a bill to alter a certain section of the Constitution in order to give effect to any agreement between St. Lucia and the UK concerning appeals from any court having jurisdiction in St. Lucia to UKPC. S 41(7)(a) identifies s 107 as that section. But the section providing for UKPC appeals is s 108; what s 107 deals with is appeals from the High Court or the Court of Appeal. So Dame Janice Pereira CJ and Blenman JA, interpreted s 41(7)(a) as meaning to refer to s 108;⁴⁸ this is obviously correct, with due respect to Mitchell JA (Ag) dissenting.

OVERARCHING DOCTRINES Certain principles, though not addressed in any enacting clause of the Constitutions, are nonetheless implicit in them as overarching doctrines; they have to be respected in the thrust to development.

(473) 439-2374 islandcatering@spiceisle.com www.islandcatering.gd

Enhanced humanising is a foremost objective of development. In an historic volte face,

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Rule of law and Elections One is the rule of law. Development, if to be secured, needs fairness. A Constituency Boundaries Commission (‘CBC’) is to make recommendations as to whether changes should be made to the number and boundaries of constituencies for general elections. The CBC in Dominica recommended the reduction of an already small Opposition-held constituency and the annexing of part of it to a neighbouring already large Governmentheld constituency. Cenac J declared that null and void. He was in 1999 upheld by the Court of Appeal. Singh JA, rejecting gerrymandering, decried arbitrary action by a CBC as being ‘totally unacceptable to the rule of law’, engendering a ‘real danger of bias’, and being ‘repugnant to the Constitution’.⁴⁹ Nor may a Prime Minister (‘PM’) remove from a CBC a member put on it by the PM just because the member would not carry out the dictates of the PM.⁵⁰ Indeed, Government may not foist constituency boundary changes on the country without giving the people sufficient time to digest same in readiness for an up-coming general election. If the new deal may not be published with enough notice, the existing boundaries would have to be observed. Carter J in St. Kitts & Nevis so held, issuing an

interlocutory injunction prohibiting the Governor-General from proceeding with his proclamation for new boundaries; she afterwards discharged the injunction, in which she was upheld by the Court of Appeal. To UKPC, though, the proclamation, if valid, could not govern the election,⁵¹ in a UKPC decision of 12 Feb 2015 that might have contributed to the ruling party losing the election of 16 Feb 2015.

Blenman J was not afraid to rule that a sitting PM had not been duly returned as an elected representative, because of errors made by electoral officials in his constituency on election day;⁵² with the consequence that he was not eligible to continue holding the office of PM. That the Court of Appeal considered the margin of victory for the PM was too ample for the errors to matter,⁵³ so the return of the PM could not be upset, does not devalue the courage displayed by Blenman J. Separation and Taxation The separation of powers tends to loom large regarding the imposition and collection of taxes, so vital to garnering revenue to finance development. ECSC has been striking down for conflict with the separation of powers, devices by which Parliament enables taxes to be imposed by other entities, as the Collector of Customs,⁵⁴ or enabling the Executive to exercise judicial power on the enforcing of a business licence.⁵⁵ Harmonisation There is the matter of the rationalising of institutions, and sometimes relatedly, the harmonising of ordinary laws with the supreme law of the Constitution. The Coroners Inquest Act of Grenada puts a duty on the Coroner to inquire into a death occurring at a place of lawful detention. At the same time the Constitution gives the DPP the usual wide powers of instituting criminal proceedings. So the question arose whether the DPP might institute proceedings regarding such a death without a coroner’s inquest being held. The Court of Appeal on 26 Apr 2017 held that, as a matter of practice, a coroner would have a good reason for suspending an inquest if the DPP institutes proceedings. But, the Court added, it would be preferable for Parliament to amend the coroners law to give that practice the force of law.⁵⁶ JUBILEE AHEAD ECSC for its first golden jubilee kept EC Constitutions apace with changing perspectives appreciably. May ECSC for its jubilee ahead afford EC Constitutions interpretational nuances appropriate to coming further national development.

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THE ADVANCEMENT OF THE ECSC Through the Introduction of Court Connected Mediation THE INTRODUCTION OF MEDIATION Court connected mediation was instituted in our Court system firstly in St. Lucia in 2002. It was set up in Grenada in 2003. Prior to this, mediation was not formally utilised in our court system.

Part 25 1(h) of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000, provides that in furthering the overriding objective by actively managing cases, the Court should encourage the parties to use any appropriate form of dispute resolution including mediation, if the Court considers it appropriate and that the Court should facilitate the use of this procedure.

Practice Direction No. 1 of 2003 titled “COURT CONNECTED MEDIATION” was given by the Chief Justice to supplement Part 25 1(h) of the said Rules. This Practice Direction extended Court Connected Mediation to all Member States and provides for referral of Civil Actions filed in the Court to mediation. Mediation had been introduced in St. Lucia before

by Practice Direction 2 of 2002.

In Practice Direction No. 1 of 2003, mediation is described as a “flexible dispute resolution procedure in which a neutral third party, the mediator, facilitates negotiations between the parties to help them settle their dispute.”

The purpose of mediation is stated to be: “To provide litigants with a timely and cost effective method of resolving their disputes.”

PROCEDURES EXEMPTED FROM COURT CONNECTED MEDIATION

by Pauline Hannibal

The Member States are: Antigua and Barbuda, Commonwealth of Dominica, Grenada, Saint Christopher and Nevis, Saint Lucia, St. Vincent and the Grenadines.

The Territories are: Anguilla, Monserrat and the British Virgin Islands.

A Mediation Co-ordinator is appointed in each Member State and this person is responsible for the management of court connected mediation in each Member State. The process of mediation is managed in each Member State and each Territory by a Court Connected Mediation Committee which may include members of the Judiciary, The Registrar of the High Court, representatives from the Ministry of Legal Affairs, The Bar Association, private sector and religious organizations. This committee is responsible for selecting the mediators approved by the Judicial Education Institute to be placed on the Roster of Mediators and the Committee also deals with complaints concerning mediation and also assesses the effectiveness of the process and makes recommendations for improvement.

THE PROCEDURE FROM REFERRAL TO COMPLETION OF THE MEDIATION This is set out in detail in PD No. 1 of 2003. Cases can be referred to mediation at any stage of the proceedings by a Master or Judge or the parties may request the referral. A Referral Order is then made and the court office sends a copy to the Mediation Co-ordinator. The mediation should be held within 45 days of the Referral Order unless otherwise ordered.

ADMINISTRATION OF THE MEDIATION PROCESS

All court connected mediations must be conducted by a mediator from the Roster of Mediators who is mutually agreed to by the parties or if the parties fail to agree, assigned by the Master or Judge. The parties or their Attorneys must submit to the mediation centre at least 7 days prior to the session, their statements of case and all documents they intend to use at the mediation.

The Eastern Caribbean Supreme Court Regional Mediation Co-ordinator is the person appointed by the Chief Justice to co-ordinate the development of Court connected mediation in the Member States and Territories.

If there is an agreement arrived at during the mediation, it will be signed by the parties and lodged with the mediation co-ordinator for filing at

At present, the rules governing court connected mediation do not provide for family proceedings, insolvency proceedings and non contentious probate proceedings to be referred to mediation.

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the Court Office. An Order will then be made by the Master or Judge in terms of the signed agreement. If there is no agreement reached at the mediation that resolves the issues in dispute, the matter is returned to court for management of the case.

THE ADVANTAGES OF MEDIATING CASES INSTEAD OF GOING THROUGH THE TRADITIONAL PROCESS THROUGH THE COURTS (i.)

Mediation gives the parties the opportunity to discuss their issues, clear up misunderstandings and find areas of agreement in a way that is not possible in a lawsuit.

settlement are more likely to comply with the terms of the settlement, than with a decision imposed on them at the end of a lawsuit. In fact, compliance with mediated resolutions have been higher than compliance with litigation decisions.

THE GRENADA EXPERIENCE Mediation commenced in Grenada in the year 2003 and was briefly interrupted as a result of hurricane Ivan which hit Grenada in 2004.

Mediation resumed shortly thereafter and has been generally positively received by lawyers as well as litigants.

Information received from the mediation centre indicates that:

(ii.) Mediation presents an opportunity to the parties to have their matter brought to closure in a much shorter time. A mediation session is generally scheduled for three hours. Even though the parties do not settle in one session and the mediation may be continued into further sessions, mediations are usually concluded within weeks or in rare cases within months. The process of going through litigation in the court normally takes months or even years. Mediation allows the parties to have their matters determined within a more reasonable time.

• On average 8-10 matters are referred to mediation monthly which sometimes increases to 15-20 matters during the period that the Master sits in the State.

(iii.) It is less costly to the client than the cost of litigation. The cost of engaging a mediator is significantly less than what the party will have to pay to his lawyer if his case is not resolved and he has to go through a trial.

Statistics from January 2017 to Present Approximately 65 matters were referred to mediation; of these 56 matters were mediated; of these 24 matters were settled at mediation

(iv.) The informality of the mediation process is beneficial to the parties in that it allows them through the assistance and intervention of the mediator, to focus their attention upon their needs and interests rather than on their stated positions. In contrast, the Court driven process which is formal in its set up and operations is designed to separate the parties. (v.)

It preserves confidentiality - Whereas court cases are usually public, mediation is confidential. It is held in private and no records or transcripts or information divulged during mediation can be used or revealed outside of the mediation. This gives a great incentive to litigants to use mediation rather than to proceed with a law suit.

(vi.) It can help to Preserve Relationships - Mediation can help to preserve business, family or personal relationships that would normally be destroyed through litigation. The mediation process is collaborative rather than adversarial. It is not focused on a win/ lose outcome but on a resolution that is satisfactory to the parties involved and for these reasons mediation has brought parties closer together rather than tear them apart as litigation does by its very nature. (vii.) By affording greater flexibility and control to the parties, it produces better results and generates greater compliance At mediation the parties have greater control over the outcome because they are integrally involved in the negotiation process.

This is not so with a lawsuit. Where the settlement is mutually agreed on, the parties being satisfied with the resulting negotiated

• Up to December 2016 number of matters referred to mediation were 1,271 • Up to December, 2016 number of matters mediated 1,064 • Up to December 2016 number of matters settled at mediation 554

The analysis received from the Centre is that settlement rate at mediation averages between 50 and 57 percent and has never fallen below 50% since inception.

The Roster of Mediators for Court Connected Mediation in Grenada comprises 22 mediators of varying disciplines including biochemist, engineers, social workers, business manager, consultants, lawyers, counselor/therapist, educator, meteorologist.

THE WAY FORWARD FOR MEDIATION IN OUR TERRITORIES Although family proceedings were not formally included in the list of matters suitable for referral to mediation, parties and their lawyers in Grenada have in many of these cases agreed to and participated in mediation resulting in settlement agreements. Some of these cases included ancillary matters following divorce such as property adjustment, custody, access and maintenance of children and issues concerning children born out of wedlock.

There is a need to have these types of proceedings formally included in the list of matters suitable for court connected mediation. The Eastern Caribbean Supreme Court has recognized this need as shown by its initiative in having specialized training for family mediators for the region in April, 2017.

As a practicing attorney-at-Law and also a court connected mediator, I have experienced the benefits of mediation and believe it is among the best things that have been introduced into our court system.

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A TALE, OR TAIL, OF

REPEALS FIRST TALE 69 Years Later: Income Tax Appeal Rules- a curious adjunct?

Section 95 of the Tax Administration Act, No. 14 of 2016 of the Laws of Grenada (“the TAA”), repealed sections 86 et seq of the Income Tax Act, Cap. 149 of the 2010 Continuous Revised Laws of Grenada (“the ITA”), thereby replacing the section on appeals against decisions of the Comptroller of Inland Revenue.

By Karen Samuel, Samuel Phillip & Associates

Prior to the passage of the TAA, our Courts had accepted that, by the conjoint effect of section 20 of the Interpretation Act Cap. 153 of the 2010 Continuous Revised Laws of Grenada, and a spate of repeal and savings laws, traced from the Income Tax Ordinance passed in 1957, through to the General Repeal Act, No. 13/1991, none of those Acts had served to repeal the Income Tax Appeal Rules SRO 39/1948. The apparently astonishing result is that the High Court jurisdiction on income tax appeals is exercisable by the Chief Justice sitting as a one-man tribunal.

Appeals from the Chief Justice proceed to the Court of Appeal.

Quite a unique tier that, an opportunity for revocation of the 1948 Income Tax Appeal Rules and simplification of the process, available at the very least at the time of conception and passage of the TAA, was missed.

So, May It Please Your Ladyship, Madam Chief Justice!

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Our Parliament amended the Property Transfer Tax Act (“PTTA”) in 2002 to ensure that citizens of Member States of the Organisation of Eastern Caribbean States are accorded national treatment in respect of acquisition or disposal of land in Grenada. (For the benefit of our lay readers, national treatment, in this context, deals with nationals of other OECS members as though they were Grenadian nationals).

In 2005, the PTTA was again amended. It appeared to many or some of us, that the amendment had been otherwise intended, and the consequence of retracting national treatment for OECS nationals was unintended.

While I am not aware of any disintegration steps at the OECS level, inquiries made of relevant public desks confirm that, consistent with the effect of the 2005 amendment to the PTTA, OECS nationals are not to be accorded national treatment.

Twelve (12) years later, correction appears an insurmountable challenge.

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Prior to 2000, Grenada’s automatic postjudgment interest provision had been contained in the subsidiary legislation known as the Rules of Court, made by the Chief Justice to regulate proceedings in Court pursuant to the Supreme Court of Grenada and the West Indies Associated States Supreme Court Act, Cap. 336 of the 2010 Continuous Revised Laws of Grenada (“Cap. 336”).

When the Civil Procedure Rules 2000 repealed and replaced the old Rules of Court, our postjudgment interest provision went out the front door.

Again, treating it as an unintended consequence, legal practitioners continued to calculate, for their clients benefit, judgment interest on unpaid judgments at the rate in force prior to 2000, until CivApp 20/2011 Deane v Doyle was decided on 16th April, 2012 by the Court of Appeal.

A client asked me not too long ago, so what do you lawyers do (about the 2010 version)?

I answered, some of us pretend the 2010 version has not occurred- indeed, some of us are unaware of the variance- but I am informed by an important functionary, that the laws of Grenada are as contained in the 2010 Revision.

Is it sufficient that the 2010 Revision was approved by the Parliament?

While I await guidance from our constitutional and legal drafting experts, I suspect that the IMF would not approve funding for a revision to correct the errors, and in the vein of Deane v Doyle, the Court would say, our law is the 2010 Revision.

Perhaps the recent paid subscription-only access to the online version of the 2010 Laws might raise the requisite funding to correct what simple folks like me consider inadvertent repeals.

Congratulations The Attorneys and Staff of Lex Fidelis Chambers extend their heartiest Congratulations to the Eastern Caribbean Supreme Court (ECSC) on its Fifty (50) Glorious years of Eminent Service, Tremendous Growth, Success and Achievements.

We wish you continued success for many more years.

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We also commend the brilliant team of dedicated workers with the commitment and sincerity aimed at the continued services which graced us with fruitful results over the years.

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The Court of Appeal took the same position Government Officials now take concerning OECS nationals vis-à-vis the PTTA: judgment interest was repealed; no automatic judgment interest.

Subsequently, I observed further that there appeared to be a version of the Civil Procedure Rules reproduced as subsidiary to the Civil Procedure Act, Cap. 55 of the 2010 Continuous Revised Laws of Grenada (“Cap. 55”)! No such Rules of Court were made pursuant to Cap. 55.

RN

Whether we approve or disapprove, Courts have, through the ages, ventured into solutions to problems in the manner otherwise considered to be reserved to Parliament, by a device known as judicial legislation.

The Civil Procedure Rules errors constitute just two examples, of many.

TE

The Deane v Doyle Effect

different from that which we know to be the Rules of Court issued by the Chief Justice as delegated legislation.

EAS

THIRD TALE

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I find it a most curious position that a Court which has shown no hesitation to judicial legislation when it considered justice demanded it, for example, in relation to the offence of murder, would find it just to deprive judgment creditors f a benefit deprived by reason of the oversight of the maker of the Civil Procedure Rules 2000.

Fortunately, the fall-out has since been addressed by the Parliament by the insertion of section 27A to Cap. 336, but that does not remedy the injustice created by the repeal.

FOURTH TALE Uncertainty: the glorious 2010 Revision About five (5) or so years ago, I had reason to ask a colleague from which version of the Civil Procedure Rules she was reading? Her answer: Cap. 336, 2010 Continuous Revised Laws of Grenada. Those rules were completely

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VIOLENCE

IN THE LAW

By Sheba Augustine LL.B (Hons), L.E.C

“Until we stop harming all other living beings, we are still savages.” -Thomas Edison

O

n October 9th 2013, Paul Chetram from Florida, St. John, told CC6 News Grenada that he was found guilty of disorderly conduct and assaulting a police officer and was flogged as punishment. My initial response - I felt sad, angry and outraged but most of all I felt disappointed. How at this time of widespread awareness of the importance of human rights can we still hold on to the idea that physical violence is an appropriate response by our judicial system to the perpetration of crimes? I wanted to understand how this archaic form of punishment survived slavery and our eventual ‘break’ from colonialism.

I asked myself the following questions: 1.

2.

Legally sanctioned violence as a response to crime stems back to the days of slavery. The Code Noir, the French system of laws enacted in their Caribbean colonies that applied exclusively to enslaved people prescribed punishments such as branding, beating, hamstringing, cutting off body parts such as ears, and death.

Present day laws relating to flogging and whipping: The Criminal Code at section 75 states that the rules relating to flogging and whipping are as follows:

What is the origin of Judicial Corporal Punishment (JCP), in particular whipping and flogging, in the Caribbean?

1.

What are the exact rules in our present legislation relating to flogging and whipping?

2.

3.

Does Judicial Corporal Punishment amount to a violation of our fundamental rights and freedoms entrenched in the Grenada Constitution?

4.

What do international human rights bodies have to say about the matter?

5.

How do our regional neighbours feel about the retention of JCP?

6.

What is the way forward?

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ORIGIN OF JUDICIAL CORPORAL PUNISHMENT IN THE CARIBBEAN

3.

4.

A juvenile offender shall not be sentenced to flogging, but in lieu thereof he may be sentenced to be whipped.

No sentence of flogging or whipping shall be passed upon a female of any age*; but, in lieu of any such sentence, the Court may sentence a female to solitary confinement or any other such additional punishment as the law for the time being permits to be inflicted on a female for an offence against the rules of the prison.

Flogging shall be with a cat of a pattern approved by the Governor-General and a sentence of flogging shall specify the number of strokes, which shall not exceed twelve.

Whipping shall be with a light rod or cane or birch of tamarind or other twigs, and

a sentence of whipping shall specify the number of strokes, which shall not exceed twelve. *It should be noted that the punishment of flogging and whipping can only be inflicted on male persons. This flies in the face of the constitutional guarantee of non discriminatory treatment of the basis of sex under section 13 of the Grenadian Constitution.

THE QUESTION OF FUNDAMENTAL RIGHTS AND FREEDOMS The Constitution is the source of the Fundamental Rights and Freedoms of all Grenadian people. Section 5(1) of the Grenadian Constitution states: “No person shall be subject to torture or to inhumane or degrading punishment or other treatment.”

The Constitution also states at section 106 that: “This constitution is the supreme law of Grenada and, subject to the provisions of this constitution, if any other law is inconsistent with the Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.

In the case of Pinder v The Queen, a 2002 Privy Council decision out of the jurisdiction of the Bahamas, five out of the five judges that heard the case agreed that JCP in the form of flogging amounted to cruel, inhumane and degrading treatment or punishment. They acknowledged

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that the constitution guards against this type of punishment, however, three of the five judges went on to hold, and thereby decide the matter, that it was not unconstitutional despite its violation of the right to not be subject to torture or cruel, inhumane or degrading punishment or treatment. This begs the question, why is a punishment that is violation of a constitutional right not declared as void to the extent of its inconsistency?

Section 5 (2) of the constitutions says this: “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in Grenada immediately before the coming into operation of this Constitution”.

constitutional to post constitutional laws so as to ensure that laws were not declared void leaving gaps within the legal system from one day to the next. However, in a modern context this reasoning holds little water. In the case of Grenada 43 years have since passed and our legislators have had ample opportunity to re evaluate our laws within the context of the constitution and more specifically our guaranteed fundamental rights and freedoms under our supreme law and weed out any provisions that are an affront thereto.

INTERNATIONAL HUMAN RIGHTS PERSPECTIVES In its concluding observations to a report submitted by Trinidad and Tobago the United Nations Human Rights Committee remarked in 2000 that it was disturbed to learn that the punishment of flogging and whipping was still in practice as it considered it to be cruel and inhumane punishment that is prohibited under Article 7 of the International Covenant on Civil and Political Rights (ICCPR).

Grenada acceded to the ICCPR in 1991. Acceding to a treaty means that the state agrees to be

Section 75 of the Criminal Code, the section that governs flogging and whipping, was in fact in force immediately before the Grenada constitution came into being and it was a section that described a particular punishment. Therefore it is saved from being held inconsistent with or in contravention of the Constitution and thus is not void based on that ground. The majority in the Privy Council decision in the case of Pinder went on to say that: “Entrenched constitutional rights only prevent the legislature from passing laws in the future which are inconsistent with the rights and freedoms in question.”

The Privy Council is also the final court of appeal for Grenada. This means that the High Court, the Court of Appeal and the Magistrates court are bound by its decisions. Further, if a case challenging the constitutionality of flogging and whipping were to be brought to the Privy Council it is likely that a similar decision would be made, although the court is not bound by its previous decisions.

Section 5 is an example of specific savings law clause as it directs its focus specifically to punishment. In other jurisdictions the constitution enacts something called a “general savings law clause” which protects all laws in force immediately before the coming into force of the constitution from being challenged on the ground of their inconsistency with the constitution. Saving law clauses were intended to facilitate the transition from pre

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legally bound by its terms. Therefore in retaining whipping and flogging as a punishment that can be judicially sanctioned, although immune from constitutional scrutiny, is a violation of Grenada’s international obligation to promote human rights.

Unfortunately, the ratification or accession of a treaty does not make it a part of the domestic legal system of a country and therefore, some would argue, cannot be relied on in local courts to be binding. In order for the content of a treaty to become a part of the domestic legal system it must be legislated, i.e, enacted like any other Act of Parliament.

After the decision of the Privy Council in the above mentioned Pinder Case, Prince Pinder petitioned the Inter American Human Rights Committee for relief against the execution of the sentence of flogging. He again argued that it would constitute a violation of his Human Rights, namely the right to be protected against torture or cruel, inhumane and degrading treatment or punishment guaranteed under Article 5.2 of the American Convention of Human Rights. The Commission decided that it was such a violation as alleged by Mr. Pinder and further that the

There are definitely some successes of which the people of the Caribbean can justly boast. The University of the West Indies, West Indies Cricket (at one time) and, the Eastern Caribbean Supreme Court (“ECSC”) are a few.

Just as the UWI has blessed the region with outstanding scholars and professionals in many fields and the exploits of the cricketing greats have made us world famous, the ECSC has, in its 50 years of existence, furnished our region, and indeed the world, with most distinguished jurists and judicial precedents of the highest scholastic quality.

On this 50th Anniversary of the ECSC, the partners and staff of Amicus Attorneys join with our colleagues of the Grenada Bar in expressing hearty congratulations to Her Ladyship, the Honourable Dame Janice Pereira, Chief Justice of the ECSC, the distinguished Justices and support staff of the Court. We wish for our Court continued success and growth, as together we continue to write the story of our great Caribbean Civilization.

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retention of JCP was incompatible with the Bahamas’ international obligation to protect rights guaranteed under the Convention and pre-emptory norms of international law. Preemptory norms are those rules of international law that are accepted to exist independently of their inclusion in treaties.

The Commission went on to explain that not only was the physical pain and humiliation of flogging cruel, inhumane and degrading but also the mental anguish that is caused by the anticipation of flogging. In the case of Pinder several years has elapsed since he had been sentenced to be flogged and the time when the committee heard the petition. The committee concluded by holding that JCP is entirely contrary to international standards of Human Rights and could not be considered an appropriate punishment used in sentencing.

Although some may argue that the very nature and purpose of punishment is expected to be unpleasant one must bear in mind the purpose of our justice system. Violence as a judicial response sends a powerful message that violence is an acceptable route to achieving compliance, in this case compliance with the laws of Grenada. However, I would argue that achieving compliance through violence does not address the root of criminal behaviour in a meaningful and sustainable way. To the credit of our legal system the court has in recent years made use of psycho educational interventions that address the causes of criminal behaviour and have found some measure of success.

In a 2012 report from the Jamaica Information Service Senator Lambert Brown was quoted as saying: “The route to justice shouldn’t be brutal” I humbly agree.

Among the Commission’s recommendations was that the sentence be commuted and that legislative measures should be taken to remove the punishment of flogging from the domestic legal system of the Bahamas.

On December 3, 2008 the Nassau Guardian reported that the Attorney General announced at the United Nations Human Rights Committee meeting in Switzerland that the Bahamian Government intends to repeal legislation permitting JCP. However, to date this has remained just an intention as JCP remains legal in the Bahamas.

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REGIONAL TRENDS In February of 2013 the Jamaican parliament passed the Law Reform (Flogging and Whipping) (Abolition)Act. In a report from the Jamaican Information Service it was said that Cabinet gave the approval for the drafting of the bill in an effort to support the Jamaican “Government’s commitment against torture and international protocols against human rights violations.”

Prior to the coming into effect of the 2013 Act which abolishes whipping and flogging as a sentencing option the last execution of a flogging sentence in Jamaica was in 1997. The former Jamaican Minister of Justice, Mark Golding, in the same JIS report said that “flogging and whipping are considered cruel, inhumane and degrading punishment under international law.” It is interesting to note that there is some movement in the region to taking active steps to removing JCP from its laws as it is accepted to be a Human Rights violation.

THE WAY FORWARD It has become the proverbial “truth universally acknowledged” that JCP, specifically, judicially sanctioned flogging and whipping, are violations

of the Human Rights guaranteed under several international treaties, international preemptory norms and our very own constitution.

However, our judicial system is held ransom to the pesky proviso that immunised punishments that were authorised under the law immediately preceding the coming into force of our Constitution.

Grenada can take a leaf out of Jamaica’s book and abolish JCP in the form of flogging or it can go one step further and amend its constitution to keep it from saving pre constitutional punishments. I humbly recommend the latter for the following reason: In 1984 the Bahamas abolished flogging and whipping as a judicially sanctioned punishment and in 1991 it was re-enacted. The almost natural reaction would be to cry unconstitutionality as this 1991 law was enacted after the coming into force of the constitution. However, the majority decision in the Pinder case held that it did not matter that the law which permitted the punishment was enacted after the coming into force of the constitution because the type of punishment that it enacted was the same as was permitted in pre constitutional Bahamas. In effect what the Privy Council said was that we

are free to repeal and re enact colonial forms of cruel, inhumane and degrading punishment that were in effect immediately before the constitution was enacted. However, we dare not come up with creative modern ones because those will be subject to constructional scrutiny.

The only way to circumvent this dangerous loophole is to amend our constitution to remove the proviso that allows us to hold on to pre constitutional forms of inhumane, cruel and degrading punishments that we can pull out at any time we feel as though we need to put a clamp on crime.

As mentioned earlier in this article saving law clauses in their genesis served the purpose of allowing for a transition from pre constitutional laws to post constitutional laws without losing chunks of our legal system with the scratch of a pen. However, 43 years post independence calls for legal reform and conformity with the ethos of our supreme law steeped in the recognition of and respect for fundamental human rights and freedoms.

This article was graciously edited by Richie Maitland LL.B (Hons), L.E.C, LL.M

Nigel Stewart & Associates CA

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HAPPY ANNIVERSARY!

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The Law Firm of Nigel Stewart & Associates extends congratulations to the Eastern Caribbean Supreme Court on its dedicated and exceptional service to the Caribbean region for the past 50 years.

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CELEBRATING 50 YEARS OF THE ECSC

Without Reservations?

(Criminal Justice in Perspective) by: George W. Prime

I

n criminal law there is an old adage, “Justice delayed is Justice denied.� And, three criminal cases (inter alia), recently concluded before the Eastern Caribbean Supreme Court of Appeal are illustrative of the saying: the cases of William Nedd vs. The Queen, John Thomas vs The Queen, and Winston Whiteman vs The Queen.

The cases of Thomas and Whiteman suffered similar fates, i.e. in respect to the case of Whiteman, the court made an order as follows: 1) the appeal against sentences was allowed. 2) the sentence of reprimand and discharge was substituted for the sentence that was imposed by the magistrate which is the sentence of $70,000.00 to be paid within twelve months or in default, three years imprisonment. With respect to Thomas, the court made an order as follows, the appeal was allowed, and conviction set aside. The case of Nedd fell into a slightly different category, i.e. this sentence was served before the appeal was heard, and in this instance the sentence was modified.

What was common to all three cases, however, was the inordinate delay in the final disposal of these matters. Virtually no one denies that the delays are bad enough and that this is undoubtedly an unsatisfactory feature of our criminal justice system. There is now widespread concern, at least, touching and concerning the appearance of justice in our State. The problems are well documented, and the criticisms are also well known. However, knowing how to improve the quality of justice is a much more difficult proposition because it involves finding solutions.

Criminal justice encompasses a vast array of institutions and professions. So much so, it is sometimes said that the system (if system is the correct word) has an infinite number of working parts, and that evaluation of the said system is virtually impossible when considered as a whole as opposed to evaluation of its constituent parts. In any event, it is the aim of this paper to focus on as many as possible of the important issues, ever conscious of the fact that

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for reasons of space, or for lack of competence (or both), there are many relevant topics that I have not addressed in this paper. For instance, I say nothing on the important issue of justice and access to justice; on the quality of legal services or victims or the legal aid system or the conditions of the prisons. Therefore, one has to put as many as possible of those working parts under scrutiny, bearing in mind that the overriding concern must be to have in place a system of criminal justice in which the public has confidence.

This great variety of institutions includes the police, the prosecution department, the courts, judges and magistrates, attorneys at law both in public and private practice, the probation service, the prisons and other penal establishments. The empirical evidence seems to suggest that public expenditure on criminal justice currently runs to E.C 66,088, 605.00. Lest we lose sight of the main thrust of this paper, this does not necessarily deal with the problem of crime.

The main preoccupation of this paper is the way in which the system functions after a suspect has been detained and charged, up to the final disposition of an appeal and the consequential remedies which follow in the wake of the appeal. No one can seriously deny that the system itself is sound. However, what is urgently needed is a method, or methods, for getting the working parts of the system to function economically and efficiently. It is no secret that the basic institutions, which are now familiar language in the vocabulary of the criminal justice system, are the police for laying charges, the prosecution department responsible for deciding whether the case goes forward and, if so, on what charges, summary trials by benches of magistrates who sit alone throughout the district namely the central, northern, southern and western, and trial of more serious cases in the High Court (criminal division). These are clearly the basic features of the existing system as given.

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Any evaluation of the working parts of the criminal justice system would of necessity require some consideration in respect of each topic and more importantly, the appropriate balance between the interests of the prosecution, those of the defence and that of due economy and efficiency. What has been, and remains a subject of fierce controversy as intimated above is that the problems are well known and occur for a wide variety of reasons.

Sometimes they are the results of wrongful acts by the police such as fabrication or planting of evidence: perhaps the result of youthful exuberance or misplaced zeal to secure a conviction. Or they are the result of a failure by the prosecution with the duty of disclosure of material that might assist the defence. Quite often these problems are the result of human failings, such a eyes witnesses who are mistaken. Sometimes they are the result of a false confession by the defendant, leading to a guilty plea. The problems are also caused (perhaps not infrequently) by defence counsel in failing to adequately put the defence case together or failing to pursue important lines of inquiry. Equally noteworthy, as happened in the cases of Thomas and Whiteman, the failure on the part of the magistrates to provide their decisions in the above cases in a timely manner has led to the problem of the denial of justice. These are classic cases of justice delayed justice denied. This has caused incalculable harm to the system and seriously denied the above named defendants of their day in court, not to mention the cost and expense which is associated with delay of this nature.

More importantly, there seems to be no compulsion on the part of the reluctant magistrates, who have rightly or wrongly failed to address their minds to this burning issue (this is not the occasion for discussion of that issue). Suffice to say that these cases provoked recent discussions before the court of appeal, not only of the merits of the particular case, but of the status of magistrates themselves to provide reasoned decisions in a timely manner. The call for prompt preparation of transcripts in the

system of appeal, has also gained in strength. This has also provoked yet another critical reaction by the judges of the court of appeal who recently sat in Grenada.

It is quite clear that our criminal justice system continues to suffer severely when sentences are imposed by magistrates and/or judges if appellants are called upon to serve their sentence before their appeal is heard as has happened in the case of William Nedd and the Queen, Nedd had to serve a five year term, and although he appealed the decision, the term was served before the appeal was heard. I believe that it would be a sad day for the criminal justice system, if the principle of timely appeals is abandoned on the altar of cost cutting.

It is sometimes said, “where money is to be saved (which is the argument now used for not financing the criminal justice system) justice is liable to be at risk”. Who is to be blamed?

Empirical evidence seems to suggest, that the department dealing with appeals is poorly staffed, indeed as we understand it there is one competent staff member who is responsible

George W. Prime ATTORNEY AT LAW

"As human beings, our greatness lies not so much in being able to remake the world, but being able to remake ourselves" Mahatma Gandhi Great things have happened in the life of the EC COURTS, in the last half century. The GBA was convinced of the interplay of the Association and The EC courts that symbiotic link which nourishes and support both (as illustrated by our Bench/Bar committee, legal education, sport and technology, public advocacy, Legislative Reform, and the Watch Dog committee. These developments " are beginning to take root as we plot the course for the next fifty years.

The Theme "Celebrating the Past, Embracing the Future”, leads us to remember the good times and the sad times. Nevertheless, in the midst of the vicissitudes of life, we should never lose sight of the single greatest influence of change.

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for filing all appeals. Maybe that would have been adequate fifty years ago. Clearly under the present dispensation, this is wholly inadequate and unsatisfactory. Due allowance has to be made to so organize the justice system to reflect the right balance between the proper interest of the prosecution and the proper interest of the defence and also to have the system running efficiently and economically.

Sometimes no one is really to blame. For example, experience has shown that an innocent defendant sometimes has the bad luck to be convicted, because of strong but misleading circumstantial evidence. Sometimes, unfortunately and inevitably, carrying out the instructions of one’s client may be acting out a lie, since a client may be untruthful and acquittal may visit a lying and guilty client. In any event, I hear all the time by non-lawyers, How can you defend a man you know to be guilty? The answer is as follows: If a defendant states to his counsel he is guilty as charged, then counsel is duty bound to advise him to plead guilty or withdraw from the case. A guilty and lying defendant is inimical to the Criminal Justice System.

However, all is not lost, because the system itself has its own built in safeguards and restrictions translated in a variety of procedures and rules, which help reduce the risk that an innocent person will be convicted. The requirement that each man be presumed innocent is basic in our system. For in our system, we regard human liberty as so important that we would rather have twenty guilty men go free than hazard the conviction of one innocent man.

Delay is excessively crude, as the empirical evidence reveals that in practice delay will lead at worst to a substantial number of persons deprived of justice, and at best, to a long and unending waiting list. The cases of Nedd, Thomas and Whiteman took five years and eight years respectively from the time they were arrested and charged to their final disposal of their respective appeals. Indeed, no one who has worked in the criminal justice system over the last fifty years could deny that there are no reservations in the way the system functions. This is not to say that there have not been some marginal successes but the reservations seem to outweigh these successes. To this end, it is my sad duty to say that there is clear room for improvement in seeking the best interest of defendants, of lay witnesses, of victims of crime, of jurors, of the prisons, of the probation services, of magistrates and judges.

Clearly, the right balance between these competing topics ought to be the ‘summ bonum.’ In any event, experience has shown that striving to achieve that right balance is as elusive as the concept of justice itself. Whatever balance is achieved, there will always be someone calling to move the goal post. So the task of adjusting the balance lingers on like a mystical canticle dangerously uncertain as to how it is to be applied. My sentiments precisely.

Eden Law Caribbean C. Jerry Edwin, (Principal)

On the anniversary of 50 years of coming into being this is an apt moment to pause and be pleased with the resilience that the Supreme Court of the Eastern Caribbean has demonstrated. As a new advocate in this jurisdiction I am extremely humbled by the efficiency of the Court and its dedicated staff in the face of tremendous human and material resource challenges.

Serving our People of the OECS, the real stakeholders of this Honourable Court, must remain the institution’s primary objective; instilling confidence from the ordinary citizen in the administration of justice the single most important of the Court's goals.

Congratulations therefore are well earned by the Eastern Caribbean Supreme Court and particularly to the many outstanding jurists charged with the heavy responsibility of ensuring impartial and efficient justice through their hard work and commitment to the People of this community.

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SOCIAL MEDIA AND THE LAW Navigating the Murky Waters of Social Media

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very aspect of our lives has been impacted by the advent of social media. Social media has revolutionised the way we do business, market products and services, vote, communicate, socialise, live and see the world. An ill-advised post or message can have far-reaching and long-lasting ramifications. You can post online, board a flight and before reaching your destination lose your job and become the subject of worldwide ridicule – just ask Justine Sacco, the author of the tweet, “Going to Africa. Hope I don’t get AIDS. Just Kidding. I’m White!”, which caused a Twitter revolt and online maelstrom in 2013. This article briefly discusses some of the legal consequences of poorly judged social media posts by referencing a few relevant cases and gives practical advice on how to successfully navigate the world of social media.

Social media has been defined as websites and applications that enable users to create and share content or to participate in social networking (www.lawsociety.org.uk). Sites like Instagram, Facebook, Twitter, Youtube and LinkedIn have become staples in our lives. Many users of social media, to their detriment, fail to realize that once they publish a blog or post or re-post on a social media platform they become subject to the laws which govern journalists and publishers, such as laws pertaining to defamation, intellectual property, contempt of court, discrimination, human rights, national security, professional misconduct and confidentiality. Additionally, the global reach and lightning speed of social media interaction means that we are not only subject to our national laws in relation to our posts but also the laws of foreign jurisdictions. You may find yourself being the centre of a legal battle on visiting a foreign country if your post infringes the laws of that country.

If someone posts or tweets a false statement which harms the reputation of another individual, then he/she may be liable for defamation. In the United Kingdom, several tweeters felt the sting of legal action when they incorrectly insinuated that Lord McAlpine was a pedophile in their tweets. In McAlpine v Bercrow [2013] EWHC 1342 (QB), the judge held that Sally Bercow, the wife of the UK’s Speaker of the House of Commons was liable for defamation for her tweet.

Bercrow subsequently agreed to pay damages to McAlpine. Similarly in Cairns v Modi [2012] EWCA Civ 1382, a professional cricketer was awarded £90,000.00 in damages after succeeding in a libel claim

By:. Thandiwe Lyle

against the former Indian Premier League chairman, Lalit Modi, who had tweeted about Cairns’ alleged involvement in match-fixing. The Court of Appeal affirmed the decision of the trial judge, stating that the judge was right to take into account the ‘grapevine effect’ of allegations on the internet.

Similarly, a person who reposts or re-tweets a defamatory statement may also become the subject of legal action. Deleting one’s post may not prevent the poster from being sued for defamation as the post may have been reposted elsewhere. In some countries, posters of defamatory statements may face criminal charges. Posters in Grenada do not have to worry about being charged with a criminal offence for making an online defamatory statement since s6 of the Electronic Crimes Act has been repealed. However, they can be sued for defamation in the civil court, which can be grave since they may have to pay substantial damages.

Many users of social media are unaware that they may use a photo or video published online if they created the content, have a licence to use the video or post, or bought the copyright or where the use of the photo or video is considered “fair dealing”. Fair dealing applies only where the photo or video is being used for non-commercial research or private study or for criticism and review and requires acknowledgment of the owner. The Copyright Act of Grenada, Act No. 11 of 2011, stipulates what types of reproduction is acceptable.

In Agence France Presse (AFP) v Morel 2011 WL 147718, Morel was awarded US$1.2M after AFP shared on Twitter photos that had been taken by Morel following the Haitian earthquake of 2010.

Professionals are also not excluded from the wrath of a social media fallout as irresponsible and offensive posting can often lead to professional suicide. In The Florida Bar v Conway 996 So.2d 213 (2008), Conway, a lawyer, was reprimanded and fined US$1,200.00 for calling a judge an “evil, unfair witch” on his blog. An Illinois assistant public defender lost her job and was suspended for maintaining a public blog in which she published confidential information about her clients and derogatory comments about judges. The blog contained sufficient information to identify those clients and judges using public sources (see: In Re: Disciplinary Proceedings against Kristine A. Peshek No. 2011AP909–D). A Former Arkansas judge, Mike Maggio,

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was permanently barred from serving as a judge by the state’s judicial ethics board after posting under a pseudonym many messages on an online football forum which were offensive and insulting to women. Closer to home, a Bermudan prosecutor was fined US$1,000.00 and admonished by that country’s Bar Council after commenting on Facebook that she was in court and ready for the lies and that she was listening to a pack of lies while the defendant in the matter was giving evidence in court. The prosecutor was found guilty of two counts of improper conduct. These cases make it clear that just as members of the public must be mindful of their posts, so too must lawyers. In fact, it can be argued that attorneys must exercise even greater caution given their position as officers of the court.

To escape the fate of the unfortunate individuals referenced above, the following are some practical tips that may assist in navigating the world of social media: 1.

Think before you post or repost. Remember what you post online leaves a digital footprint, is immortalised and can easily be retrieved by others even after deletion. Before posting always consider whether your post breaches any contractual, legal or professional duty or is otherwise unlawful or is insulting, offensive, contemptuous, or defamatory.

2.

Always be mindful that using pseudonyms may not protect you from the fallout of a poorly judged social media post.

3.

Remember: if it is improper to do or say something in person then it is improper to write, say or do it online.

4. Manage your online presence efficiently.

Carefully monitor what is posted on your social media pages and what you post.

Remember these images, videos and statements may be viewed by employers, clients, lawyers, judges, and people from all walks of life.

5.

Ensure that your online security offers you maximum protection.

6.

Think before you add a friend. Where attorneys and judges are “friends” on social media sites, extreme caution must be exercised to ensure that there are no acts of professional misconduct or other legal infringement.

7.

Owners of blogs and other social media platforms should place appropriately worded disclaimers on their sites.

8.

Acknowledge the owner of any work before posting or try to obtain their prior consent.

9.

When in doubt about whether a post may land you in trouble, then do not post it.

10. In sum, always be careful and vigilant.

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IN MEMORIAM…

by Lisa Taylor Principal, Lisa Taylor & Co

They are not dead who live in the hearts they leave behind. (Navajo proverb) As we celebrate the 50th anniversary of the OECS Court, it is fitting to recall the lawyers who have gone to the great beyond and have in some sense built a bridge for those remaining to cross. Many of our fallen colleagues extended their sphere of influence while on earth beyond the halls of the OECS Court. The following personal and learned recollections of the writer are mere snapshots meant particularly for our younger colleagues who may have no living memory of lawyers who have gone before.

THE PRIME MINISTERS These include Herbert Blaize (1918-1989) Maurice Bishop (1944-1983) and Ben Jones (1924-2005) whose political exploits need no recounting here. Maurice, together with his law partners Lloyd Noel and Kenrick Radix came to prominence in the law in 1970-1971 by successfully representing 22 nurses charged for striking about the conditions at the General Hospital.

Ben Jones (“Uncle Ben”) is remembered for his dignified, military bearing and smooth but always courteous oratory in his court engagements.

Jones, along with the late Michael Cruickshank, was part of a delegation of lawyers who represented Maurice Bishop, Kenrick Radix and other New Jewel Movement leaders arrested and beaten after the infamous Bloody Sunday events in Grenada. Herbert Blaize is well remembered in Carriacou in particular for his political as well as his legal career.

Notably, George E.D. Clyne (1920- 1984) (from whom it is said that his daughter Celia Edwards Q.C. inherited a flair for stirring advocacy) was a Chief Minister in 1961 apart from founding the law firm which today still bears his name.

THE POLITICIANS Now as then the practice of law remains a springboard for politics. Its call beckoned Michael Andrew (1942-2013) whose striking “black power” afro was only rivalled by the late Sir Dwight Venner and was proudly worn by Michael until his passing in 2013. He served as Minister of Housing in the first NDC government after being elected as Member of Parliament for St. David. Ernest John, a gentle man and a gentleman who passed away in 2015 aged 90, also wore a political hat of sorts serving as both Attorney-General and DPP during the 1970’s.

Perhaps the most flamboyant under this heading was Bernard Kendrick (also “Kenrick”) Radix simply called “Dix” by his friends. His political

career is well known. His fearsome devotion to his clients, as a sometimes sandal-clad but always sharp-witted lawyer is perhaps lesser known.

The “Radixian” style of conducting his cases all the while facing the public gallery may have vexed the judges who were presented with a view of his back but invariably delighted the gallery. Herbert Squires and Sir Hudson Scipio, the latter a former Speaker of the House of Representatives, are also remembered in this realm.

THE FARMER/CALYPSONIAN Robert “Soca Boca” Grant nearly made it into the politician class but only as an aspirant. He was singularly, however, a farmer/lawyer/DJ/ calypsonian. One of his calypso offerings drew the ire of then Prime Minister Herbert Blaize when in 1984 or thereabouts he opined in song that “In Grenada Today you hear John Public say, Government Minister taking your rights away, stifling your right to opinion, drying your pockets through taxation…”. In his other career as lawyer, he is known as one of the founding partners of the law firm “Grant & Grant” the precursor to “Grant, Joseph & Co.” The other founding partner of “Grant & Grant” was Soca Boca’s wife, Linda Grant. Born a daughter of Scotland she died a daughter of Grenada in 2005 after losing a valiant fight against illness. While she lived, she was a strong supporter of others who battled the same disease which afflicted her.

THE CONVEYANCERS John Byron Renwick was a founding partner of the oldest surviving conveyancing law firm, Lewis and Renwick, until his death in October 1977 and also served in the short-lived Federal Government of 19581962. Ovid Gill is remembered as much for his passion and skill for conveyancing and the law as his ready willingness to help all who sought his expertise. He was also a living cricket encyclopedia whose love for the game is seen in all his offspring notably Haydn Gill a well-known Caribbean sport journalist and Dwain Gill, coach and current head of the Grenada Cricket Association. Baidwattie Misir-Andrew, wife and law partner of Michael Andrew, enjoyed a good reputation as well for her conveyancing prowess. Messrs. AO Payne and Gordon Renwick, among the founding partners of the firm of Renwick & Payne, are also remembered for their conveyancing skills and their contributions to civic life. So too was Sir Denis Henry, a founding partner of Henry, Henry & Bristol and Ashley Taylor whom we lost in 2004. Denis Roberts,

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also a skilled conveyancer, is also remembered for his role in the 1990 law revision exercise, as Special Crown Counsel. Many conveyancing instruments of past years also bear the name of the late Lyle Hosten of the now defunct firm “Hosten & Punch-Johnson”.

HER MAJESTY’S COUNSEL Among the luminous “silks” featuring in the Court’s 50 year history, Trinidad-born Karl Hudson-Phillips Q.C., (1933 to 2014) son of Grenadian Barrister Henry Hudson-Phillips Q.C., achieved Caribbean prominence.

Perhaps none other in this group may claim, as he could, to have appeared in all of the courts of the OECS territories as well as Jamaica and Guyana. His work ethic was awe-inspiring, comfortably bridging both the prosecution and defence benches. His illustrious legal career included a stint as a Judge of the International Criminal Court from 2003 to 2007.

Edwin Heyliger Q.C.(1916-2010) was similarly a Caribbean man serving variously in several Caribbean countries as Magistrate, Crown Attorney and Judge. His accent betrayed his Guyanese birth but by his service and longest residence, he called Grenada home. In private practice in Grenada his record as a defense lawyer was such that the story is told that men in heated exchange could be heard to say “Ah go kill you and then hire Heyliger!” Later in life, his wit undiminished and bedecked in his signature blue hat, he often held court of a different kind at his favourite Rudolf’s Restaurant. By a quirk of fate, Heyliger’s one-time clerk when he served as Magistrate in Grenville, St. Andrew was Julius Isaac (1928-2011) who rose to become the Chief Justice of

the Federal Court of Canada, the first black man and certainly the first Grenadian to do so.

Carol Bristol Q.C. enjoyed the distinction of being the only member of this group to have served as Chief Justice of Grenada during 1990 to 1991, while Grenada transitioned back to the OECS Court after operating its own court in the 1979 to 1983 revolutionary period. He was deeply involved in civic life and sports administration notably cricket and served as Commodore of the Grenada Yacht Club for many years.

There are enduring memories too of the many lawyers’ cricket matches he organized at Hope, St. Andrew. His good friend Lloyd Noel recalled at his death in 2014 how he was a mentor to younger lawyers involved in the political and legal struggles of the Eric Gairy era.

Ernest Clarence Wilkinson Q.C. (“E.C.” to those close to him) never lost the pronounced Bajan brogue of his birth home Barbados but left his mark on his adopted home, Grenada. In his earlier life his service as Registrar of the Court was exemplary. He later brought his meticulous nature to his private practice where his name was replicated many times over as one by one three of his daughters joined the family firm.

His erect stature was never stooped by age no doubt helped by his devotion to his Wednesday round of golf.

Derek Knight Q.C. (“D.K.” to those who dared) was an outstanding advocate who never flinched from speaking his mind and challenging authority. These qualities served him well as one of the founders of the Technical and Allied Workers Union. It also from time to time

LISA TAYLOR & CO. AT TO R N E Y S AT L A W We salute the Eastern Caribbean Supreme Court on achieving 50 years of service to the people of the OECS and Grenada in particular.

This occasion presents an opportunity for due reflection and justifiable pride.

While we lament the breakdown of institutions near and far, we may yet celebrate that our court system has survived through fire, storm and political upheaval. In its onward journey, it is for the people of this sub-region to ensure that far from mere survival, our judicial system must in fact thrive and continue to serve as a steadfast light for justice.

In this endeavour, we are called upon to stand up for the independence and integrity of our Court and to do our utmost to preserve it against the falling standards and mediocrity which threaten to be the plague of our age.

Happy 50th Anniversary from the Principal and staff of Lisa Taylor & Co. Lucas, Street, St. George’s, Grenada, West Indies 68

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put him at odds with the law. In 1984 an exchange of words between Knight and Patterson J resulted in a short sojourn at Richmond Hill for contempt of court. In true Knight fashion he insisted that the warrant for his arrest was palpably bad. A later arrest in his senior years led to the infamous “de-pantsing” incident but more importantly signaled that ne never lost his fighting spirit. He also left a legacy of significant court judgments which have added to our jurisprudence and until his passing in 2008 was “a vociferous advocate that the new Civil Procedure Rules were not properly adopted in Grenada” as one member of the Grenada Bar recalls.

GONE TOO SOON Rodney Rapier, a bright star in the office of the DPP, sadly fell far short of the biblical 3 score and 10. So too did Terese Sylvester-Archibald.

Fennis Augustine who departed this life in 1993 left a legacy of fighting for social justice particularly for those who could not easily access the court.

George Louison (1951-2003) also left us before he could claim old age.

In his political life he served as a Minister of Government during the Grenada Revolution. His later pursuit of law as a second career saw him practising mainly in Trinidad and occasionally, Grenada,

We remember as well Wilberforce (“FAO”) Nyack, long-time Solicitor for Derek Knight Q.C. and Christian “Brim” St. Louis, who was also a magistrate. The inimitable Michael Sylvester (1935-2006) was a tall, dapper figure whose gift of oratory and writing style were outstanding.

STOP PRESS! As we go to publication, the Grenada Bar Association mourns the sudden passing of our colleague and friend, Lloyd Noel. Through his contributions to the political and civic life of Grenada, his unflinching words as long-standing newspaper columnist, his commitment to clients as Defence Counsel and his strong community and family ties Lloyd will forever be remembered as a Grenadian patriot. We are better because he lived with us this little while yet diminished that he has now gone from us.

All gone but certainly not forgotten.

(Author’s note – any errors and omissions are solely the fault of the failing memory of the writer and no slight was intended. For information on jurists of the period, Dr. Francis Alexis’ excellent history of the Court at its 40th anniversary is highly recommended).

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FINALLY Sydney Jacob, one of Carriacou’s sons is remembered as much for his quirky character as his legal practice. As characters go, the name of

I.I. Duncan lives on for his exploits in private practice and as a longserving Magistrate in Grenville, St. Andrew.

FIAT JUSTITIA 1967-2017

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CONGRATULATIONS!!

We, Evette John and Annette B Henry, Attorneys-at-Law, wish to extend our sincerest congratulations to the Eastern Caribbean Supreme Court on its achievements during its 50 years of existence.

As former public officers who were attached to the Supreme Court Registry of Grenada from 1980, we are eternally grateful for the experience and knowledge gained during our tenure which motivated us to be called to this noble profession.

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We extend heartfelt congratulations to the Eastern Caribbean Supreme Court on its 50th anniversary.

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We wish the Court continued success in the years to come.

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Pannell House | P.O. Box 1798 | Grand Anse | St. George’s Grenada | West Indies Tel (473) 440-2562/3014/2127/0414 Fax (473) 440-6750 | Email pk@spiceisle.com

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END NOTES THE COURT, THE CONSTITUTION AND NATIONAL DEVELOPMENT by Dr. Francis Alexis, Q.C.

¹⁹ Spencer v A-G [1999] 3 LRC I (CA-A&B); HMB Holdings Ltd v Cabinet (2007) 70 WIR 130 (UKPC) [A&B].

¹ Antigua and Barbuda (‘A&B’); Commonwealth of Dominica (‘Dom’); Grenada (‘Gda’); Saint Christopher (Saint Kitts) and Nevis (‘SKN’); Saint Lucia (‘SLU’); Saint Vincent and the Grenadines (‘SVG’).

²¹ A-G v Mc Leod(1984) 32 WIR 450, 456 a (UKPC) [T&T] on T&T 1976 s 53, whose EC equals are in n 20 above.

² Anguilla (‘Ang’); British Virgin Islands (‘BVI’), Montserrat (‘Mon’). ³ A&B Consti Order 1981 SI 1981 No 1106 [UK], sch 2 para 7(a); Dom Consti Order 1978 SI 1978 No 1027 [UK], sch 2 para 8(a); SKN Consti Order 1983 SI 1983 No 881 [UK], sch 2 para 7(1)(a); SLU Consti Order 1978 SI 1978 No 1901 [UK], sch 2 para 8(a); SVG Consti Order 1979 SI 1979 No 916 [UK], sch 2 para 8 (a). See too BVI Consti Order 2007 SI 2007 No 1678 [UK], s 89. ‘Consti’ means Constitution. ⁴ Gda Consti Order 1973 SI 1973 No 2155 [UK], sch 1 s 105: ‘the Supreme Court of Grenada and the West Indies Associated States’. ⁵ West Indies Associated States Supreme Court Order 1967 SI 1967 No 223 [UK] s 4 (1) establishing the Court styled it the ‘West Indies Associated States Supreme Court’. That Order is now the Supreme Court Order by provisions in n 3 above. ⁶ F Alexis, Eastern Caribbean Supreme Court: Model Regional Court (ECSC, SLU 2007). ⁷ UN’s Declaration on the Right to Development, UNGA reso 41/128, 4 Dec 1986.

²º A&B S 46; Dom s 41; Gda s 38; SKN s 37; SLU s 40; SVG s 37.

²² A&B s 47; Dom s 42; Gda s 39; SKN s 38; SLU s 41; SVG s 38. ²³ See Dom s 60(3); Gda s 59(3); SKN s 53(3); SLU s 61(3); SVG s 52(3). Then see A&B s 70(1 ²⁴ Francois v A-G LC 2004 CA 3 [107] (Rawlins JA-SLU). ²⁵ OR Marshall (1971) 4 Mani LJ 392; AR Carnegie [1985 Oct] WILJ 43; K Mitchell, Words in Service (R Charles 2015) 175. ²⁶ Collymore v A-G (1967) 12 WIR 5 (CA-T&T) as to the Bill of Rights; A-G v Dumas [2017] UKPC 12 [15] [16] [T&T] as to the general part. ²⁷ Hinds v R (1975) 24 WIR 326, 333C [UKPC] [Jam]; D’Aguiar v A-G (1962) 4 WIR 481, 501D (Date J-BG [Guy]). ²⁸ Interpreting a Consti entails upholding the policy of a particular provision in it. ²⁹ In Hector v A-G, Matthew J – A&B so held in (1986) 1 OECSLR 252, he was reversed by the CA led by Robotham CJ in (1987) 40 WIR 135, but restored

by UKPC in (1990) 37 WIR 216.

⁸ UN’s United Nations Development Agenda (UN, New York 2007).

³º In de Freitas v Permanent Secretary, Redhead J- A&B so held, he was reversed by the CA led by Sir Vincent Floissac CJ in (1995) 49 WIR 70 but restored by UKPC in (1998) 53 WIR 131.

⁹ S A de Smith, The New Commonwealth and its Constitutions (Stevens 1964) says at 179 of Bills of Rights as those in the EC that they mainly can be readily endorsed by a ‘democrat’, and at 185 that they are instinct with the ‘classical liberal freedoms’.

³¹ Provisions in A&B imposing on newspaper publishers an annual licence fee, and a libel security deposit, struck the CA as violative of freedom of expression, but UKPC thought not in A-G v Antigua Times (1975) 21 WIR 560.

¹⁰ A&B s 2; Dom s 117; Gda s 106; SKN s 2; SLU s 120, SVG S 101. The name of a country followed by a citation to a section (‘s) is a reference to its Consti.

³² Exeter v Baptise, SVGHCVAP 2016/0021, 7 Mar 2017 (CA-SVG): on an election petition a respondent application to strike was brought in chambers, it should have been in open court, it was premature; Cottle J said if the application was made in open court it was bound to succeed; it was so brought, Cottle J upheld it. CA saw apparent bias and or predetermination. Stanley John Q.C. showed the writer this case.

¹¹ A bill for an ordinary Act is passed in a House of Parl by a simple majority of its members, those present and voting on the bill. A bill to amend an entrenched provision of a Consti has to meet special requirements, even sometimes referendum approval. See F Alexis, Changing Caribbean Constitutions (2nd edn Carib 2015) Ch 3. ¹² The indep of ECSC judges is bolstered by provisions as to appointment, remuneration, terms & condition not being alterable disadvantageously, jurisdiction being substantial, security of tenure with protection against arbitrary removal from office: Alexis, n 6 above, Ch 2. ¹³ The expression ‘Westminster model’ was popularised by de Smith, n 9 above, Ch 3. In the EC it refers to a consti which is supreme, promotes gov based on the consent of the people, separates the Judiciary from Parl and Gove from the indep of the Judicairy, and respects human rights, but without the parliamentary sovereignty of Westminster. ¹⁴ See A&B s 10(2)(a). Then see Dom s 7(2(a); SVG s 7(2)(a). It caters for the authorising of entry on premises to obtain or verify information required for the purposes of planning, management and ‘development of the national economy’ in the 1980 Guyana Consti art 143(2)(c). ¹⁵ S 6(6)(a)(vii) in Dom, Gda, SLU, SVG. ¹⁶ On public interest subjects, see Alexis, n 11 above, paras 4.34-4.35. ¹⁷ A&B s s 5(1)(j), 6(3)(d), 8(3), 10(2)(c)(d) (e), 12(4)(a)(ii); Gda ss 2(2)(c), 3(1) (g)-(i)(3)(a), 6(6)(b)(ii)-(iv), 7(2)(b)-(d), 9(5)(b), 10(2)(b), 11(2)(b), 12(3)(c). ¹⁸ Spencer v A-G [1999] 3 LRC 1, 176 (CA-A&B).

³³ In Yearwood v A-G (1978) 1 OECSLR 389 CA upholding (1977) 1 OECSLR 324 HC struck down Act compulsorily acquiring sugar estates to rescue the industry as compensation was not full. ³⁴ HMB Holdings Ltd v Cabinet (2007) 70 WIR 130 (UKPC) [A&B]; Williams v Government (1969) 14 WIR 177 (UKPC) [SLU]; Spencer v A-G [1999] 3 LRC 1 (CA-A&B). ³⁵ A-G v Francois LC 2004 CA3. ³⁶ Ibid. ³⁷ Mills v A-G (1993) 45 WIR 125 (CA-SKN). ³⁸ Gairy v A-G (No 2) (2001) 59 WIR 174 (UKPC) [Gda]. ³⁹ Observer Publications Ltd v Matthew (2001) 58 WIR 188 (UKPC) reversing [1999] ECLR 126 (CA-A&B). ⁴º UKPC ordered that there be issued to Observer the radio broadcasting licence applied for, as well as a business licence if needed. Historically, a court would not tell a decider what decision to reach on the merits; a court would not substitute its view of the merits for that of the decider, but would order the decision-maker to decide the matter according to law: Padfield v Minister of Agriculture, Fisheries & Food [1968] A C 997 (HL). ⁴¹ Camacho & Sons Ltd v Customs Collector (1971) 18 WIR 159 (CA-A&B).

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⁴² Benjamin v Minister of Information & Broadcasting (2001) 58 WIR 171 (UKPC) reversing CA-Ang [1998] ECLR 188 restoring Saunders J. ⁴³ (2000) 57 WIR 141 (UKPC) [Dom].

FOREIGN INVESTMENT LAW AND THE SMALL STATE by: Michael Lindo

⁴⁴ Ibid 151d-153a.

¹ Surya P Subedi, International Investment Law, (2008), 76-78.

⁴⁵ Pratt v A-G (1993) 43 WIR 340 ( UKPC) [Jam]. Another element is that such sentence may not be imposed except for the worst of the worst murders.

Yet another follows this note.

² AF Lowenfeld, International Economic Law, (2nd Edn., 2008) 563-564.

⁴⁶ R v Hughes ( 2001) 60 WIR 156 (CA-SLU), affirmed in (2002) 60-WIR 156 (UKPC). ⁴⁷ Spencer v A-G [1999] 3 LRC 1 (CA-A&B); A-G v Francois LC 2004 CA 3. ⁴⁸ A-G’s Reference (2013) 83 WIR 228 (CA-SLU). ⁴⁹ Constituency Boundaries Commission v Baron (1999) 58 WIR 153 (CADom). ⁵⁰ Watt v Prime Minister (2013) 85 WIR 289 (CA-A&B). ⁵¹ Brantley v Constituency Boundaries Commission [2015] UKPC 21 [SKN].

Use of proclamation by G-G of 16 Jan 2015 to alter constituency boundaries injuncted on 16 Jan 2015 by Carter J, who on 22 Jan 2015 discharged the injunction; in which she was upheld by the CA. ⁵² Simon v Spencer, ANUHCV2009/0412, 31 Mar 2010, HC- A&B. ⁵³ Spencer v Simon, HCVAP2010/020, 27 Oct 2010, CA-A&B. ⁵⁴ Astaphan & Co v Comptroller of Customs (1996) 54 WIR 153 (CA-Dom). ⁵⁵ A-G v Goodwin (1999) 60 WIR 249 (CA-A&B). ⁵⁶ DPP v Felix, GDAHCVAP2013/0007, 26 Apr 2017, CA-Gda.

THE ENFORCEMENT OF A MONEY JUDGMENT by: Darshan Ramdhani & Sabrita Khan-Ramdhani ¹ CPR 2000, by Rule 45.2, sets out those procedural steps which are required to be taken so that the formalities of registering money judgments as charges on land made be completed.

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³ Articles 51, 52 and 53 of the ICSID Convention. ⁴ Subedi, International Investment Law, (2008), 32-33.

THE CARIBBEAN COURT OF JUSTICE & ‘COMMUNITY RIGHTS’ by: Richie Maitland ¹ So named, because it was signed in Chaguanas, Trinidad and Tobago. ² The right to be heard by the court. ³ 2259 UNTS 293, art. 222 ⁴ For the purpose of benefitting applicants. ⁵ [2013] CCJ 3 (OJ) ⁶ [2017] CCJ 1 (OJ) ⁷ A stage name ⁸ Prohibiting discrimination on the basis of nationality. ⁹ [2016] CCJ 1 (OJ) ¹⁰ Dudgeon v United Kingdom [1981] ECHR 5 ¹¹ Toonen v Australia CCPR/C/WG/44/D/488/1992 ¹² Caleb Orozco v AG of Belize, Claim No. 668 of 2010, Supreme Court of Belize