Press release 107/2001
(13 August, 2001)

Mr. Master of Ceremonies
Madam President of the Caribbean Public Services Association (CPSA), and other Members of the Executive
Members of Parliament
Acting Mayor of Port-of-Spain
Head of the Public Service, Ms. Annette Des Iles
Chief Personnel Officer, Ms. Marshac
Permanent Secretary in the Office of the Prime Minister , Ms. Joan Massiah
Head of the Public Service Commission, Mr. K. Lalla
Dr. Reverend Dean Knowly Clarke and other members of the Religious Community
Mr. George DePena, Former International Labour Organisation (ILO) Regional Representative
Other delegates of the CPSA
Specially Invited Guests
Ladies and Gentlemen of the Media
Observers
Ladies and Gentlemen

I am deeply appreciative of the honour bestowed on me by being invited to deliver the Keynote Address and to declare open this, the Thirty-First Annual Conference of the Caribbean Public Services Association (CPSA). It is significant that the CPSA, a body whose membership comprises public servants from the entire Region, would wish, at its first meeting in the first year of the new millennium, to be addressed by the Secretary-General of the regional integration movement, CARICOM. We take this as a high compliment indeed for as Secretary-General, I speak essentially as one of you, that is, in the service of the regional public.

The theme of your Conference: The Challenge of Public Sector Unions in the Caribbean in an era of Globalisation and Privatisation indicates that the CPSA is conscious of the challenges and opportunities which confront us in the Region, in the dynamic global environment which we, as citizens of the Caribbean, inhabit. It also indicates that public servants are aware of the thrust of economic growth and development in our Region and in the global economy. It may therefore be useful to say a few words at this juncture about the globalisation phenomenon. The essence of globalisation is really the ability for goods, capital, services and people and information and ideas to move quickly and cheaply, and without Governmental control, across national frontiers, which in turn leads to a number of changes and modifications in the organisation of world production and in ways of life in general.

Many are the definitions and implications attaching to this process which historians remind us is not the first of its kind. The Economist amongst others for example, reminds us that the first such era was in the period 1800 to the late 1920s. That era of globalisation was built around falling transport costs - thanks to the invention of the railroad, the steamship and the automobile. It was essentially ended by the Great Crash of 1929. Today's era of globalisation is built around falling telecommunication costs - thanks to microchips, satellites, fibre optics and the Internet. It is these new technologies that have made it possible to weave today's world even tighter together. Created by this process and now the key institute in reinforcing it, is the World Trade Organisation (WTO) which serves to convert these technological capabilities into international politically, legally-binding obligations.

For us, one of today's most critical implications of globalisation, is the virtual disappearance of what was once considered domestic markets. Even the street corner vendor selling her doubles now knows that she has to compete with international food suppliers like McDonald's and Kentucky Fried Chicken. In other words she, too, has been "globalised". But the forces unleashed by globalisation are for us, not all negatives. As pointed out by Thomas L. Friedman in his popular book, The Lexus and The Olive Tree,

"these technologies mean that developing countries don't just have to trade their raw material to the West and get finished products in return; they mean that developing countries can become big time producers as well. These technologies also allow companies to locate different parts of their production, research, and marketing in different countries, but still tie them together through computers and teleconferencing as though there are in one place. Also thanks to the combination of computers and cheap telecommunication, people can now offer and trade services globally from medical advice to software writing to data processing - that could never really be traded before. What makes this era of globalisation unique is not just the fact that these technologies are making it possible for traditional nation states and corporations to reach farther faster, cheaper and deeper around the world than ever before. It is the fact that it is allowing individuals to do so."

Our Region has recognised that globalisation has become the dominant feature of today's international economy. It can neither be avoided nor ignored. We therefore have to manage the changes which this phenomenon has brought about, and to adjust to the new demands which it presents.

The Region's response has an external as well as an internal dimension. The external response has been the forging of new, or the strengthening of its current links with other countries in the Region. In this regard, CARICOM has in recent times concluded, for example, a Free Trade Agreement with the Dominican Republic and a Trade and Investment Agreement with the Republic of Cuba, both of which are expected to be operational soon. Prior to those arrangements, CARICOM established trade arrangements with the Republics of Venezuela and Colombia, the latter of which was recently transformed from a non-reciprocal preferential arrangement to one which provides for some degree of reciprocity. These Agreements provide, with CARICOM's own market, a preferential market space of some 90 million people. But preferential market space is one thing, effective exploitation of it is another matter entirely.

At the wider hemispheric level, negotiations, in which the Community is fully involved, are expected to result in the establishment of a Free Trade Area of the Americas (FTAA) of some 800 million people, by the year 2005. Further afield, on the other side of the Atlantic, beginning in September 2002, CARICOM countries will join the rest of the African Caribbean and Pacific (ACP) Group of countries to commence negotiations for new trading arrangements with the European Union (EU). These new trading arrangements will need to be compatible with the principles of the World Trade Organisation (WTO) and would certainly be characterised by the progressive removal of such preferences as the countries of the Region now enjoy in the market of the European Union, and their replacement by reciprocal trading arrangements.

Finally, simultaneous with the negotiations in the hemispheric and European theatres, negotiations are also underway in the WTO to establish or to further revise and extend existing rules governing international trade. The effect would be to bring more and more issues, many of which were historically in the national and bilateral purview, under the umbrella of international trade. Indeed, it is important that you know that a new comprehensive Round of multilateral trade negotiations under the WTO, may well be launched in November of this year at the Fourth WTO Ministerial Conference in Qatar, to follow up the so-called Uruguay Round which ended in 1994.

There is, however, at this time, widespread objections by developing countries to such a Round, given the number of issues still outstanding from the Uruguay Round, which are of interest to developing countries; issues such as trade-related Intellectual Property Rights (TRIPS); trade-related Investment Measures (TRIMS); Agriculture; Textiles; Subsidies by developed countries on their production; and lack of meaningful implementation of special and differential measures in favour of developing countries in the context of Uruguay Round Agreements . Moreover, there is widespread objection to the addition of new issues, particularly environment and labour, as well as great reluctance on the part of many countries to the inclusion of new issues such as investment, competition policy and transparency in Government procurement on the multilateral trade negotiations agenda.

CARICOM's position today remains not one of implacable opposition to a new round, but of continued doubt as regards the necessity for such a round at this time, and in any case, for firm guarantees that the interests of small developing states would occupy a more central place in any new international trade negotiations.

Much convincing would therefore need to be done to win the support of the developing countries for a new Round of multilateral trade negotiations which is certain to make even more demands on those countries. I can assure you, no effort is being spared to so convince them. It is critical, Ladies and Gentlemen that in this process the interest of the developing world, as well as of the poor in the developed world be seen to be adequately taken into account if we are to avoid, not only a worsening world socio- economic situation, but also a repetition of the riotous response which we have experienced at Seattle, at Davos in Switzerland, at Quebec City, and most recently at Genoa in Italy. But this Ladies and Gentlemen, is a subject in its own right which we cannot adequately deal with tonight.

As regards "privatisation", which is a significant feature of globalisation, Paul Starr, writing in the Yale Law and Policy Review, states that :-

"Privatisation has come primarily to mean two things: (1) any shift of activities or functions from the state to the private sector; and, more specifically, (2) any shift of the production of goods and services from public to private".

The emphasis, you will observe, is placed on the shift rather than on the activities. We may know differently. An integral part of the way in which our countries commenced their adaptation to the new economic order, was through the adoption of structural adjustment measures, with the many consequences of which many of us, ranging from senior public servants to breast-feeding mothers, are quite familiar. For, as you know, prominent among those adjustment measures was the prescription for the reduction of the role of the State in national economic and social activities.

Often this resulted in divestment of public entities to the small group of citizens who could afford to acquire them and sometimes, even to foreign ownership. Apart from the direct implications for public sector employment, this has frequently left Governments without the capacity to influence key areas of national economic development and/or of social welfare. It is however, now universally recognised and widely accepted, that the state has a significant role to play in national economic development, especially in developing countries, that cannot be left solely to market forces.

The primary response to the imperative of the globalising process has however been an internal one, that is the restructuring of the regional economy to create a single, more viable economic space - in other words - a CARICOM Single Market and Economy (CSME). This was indispensable if the Region was to be able to preserve and advance its interest in the new dynamic of the global economy. Madam President, Ladies and Gentlemen, the CARICOM Single Market and Economy is pivotal particularly as a platform for securing the survival and growth of our small, vulnerable economies, particularly in the new hemispheric economy of the Americas which will result from the FTAA.

The CSME is really aimed at the creation of a single economic space which will support competitive production in CARICOM for both the intra regional and extra regional markets. It will therefore provide for the free movement within the Region, not only of goods, but also of services, of capital and of skilled labour. In addition, it provides for the right of establishment permitting thereby the freedom to establish enterprises throughout the Community by nationals from any Member State of the Community, and to be treated no less favourably than a national of that country. In so doing, however, it seeks to safeguard the opportunity for sustainable development of all its Members by protecting the most vulnerable countries, regions and sectors. It also sets the framework for the development of the most vital sectors of our economies.

And all of this is to be buttressed by the Caribbean Court of Justice on which I wish to focus a significant part of the remainder of my address. I believe this is both necessary and timely, given the importance of the Court in the restructuring of our economies and society generally, and given the divergence of views within countries and across the Region about this Court which is about to be established and headquartered here in Trinidad and Tobago.

One of the most interesting dimensions of the Court that we, as a Caribbean people, need to appreciate is that the structure of the Court is unique - in that, on the one hand, it is an international tribunal with exclusive jurisdiction for the interpretation and application of the Treaty Establishing CARICOM, commonly known as the Treaty of Chaguaramas and, on the other, it is a court of last resort, that is, the highest appellate court in the Caribbean Community for both civil and criminal matters.

Other integration movements like the European Union, the Andean Common Market, the East African Community and the Central American Common Market, all have courts to interpret and apply the instruments establishing those groupings. However, those courts are all international tribunals and do not combine in their jurisdictions a competence to deal with domestic or municipal law issues of a civil or criminal nature as our Court is designed to do. Interestingly enough though, the East African Community is reportedly preparing to follow the CARICOM model. In summary, therefore, our Court has an original jurisdiction to deal with issues deriving from the implementation of the Treaty Establishing the Caribbean Community, and an appellate jurisdiction, to deal as the final court of appeal with all civil and criminal matters arising from the Courts of the Region.

As an appellate Court, the Caribbean Court of Justice is expected to replace the Judicial Committee of the Privy Council. And it is in regard to the discharge of this function that perceptions of the Court in the Caribbean Community are either uninformed, inadequately informed, or misinformed. I believe that it is useful for me to address some of these perceptions, especially in a gathering such as this and at this juncture in our Region's development.

First of all, to test your knowledge of our history, I wish to draw your attention to the following statement, I quote :

"...

Thinking men ... believe that the Judicial Committee has served its turn and is now out of joint with the conditions of the times. Latterly, the character of the appeals have varied very much and have involved questions of complex legal range and jurisprudence which are altogether different from the principles in force in England."

Ladies and Gentlemen, I challenge any of you to identify that statement; I challenge you even further to identify its source, and I defy any of you (unless I have told you this story already) to identify the date of that statement.

That statement is an extract from an editorial of a Caribbean newspaper - the Jamaican Daily Gleaner of 6 March 1901 - one hundred years, five months and six days ago claiming that the Privy Council is "out of joint" with the conditions of the times. Those times were a hundred years ago. I wonder what it is like today! What does that say to those who seem to think that the call for a final Caribbean Court is some hurriedly made-up scheme by some modern-day, hanging-happy Attorneys-General who wish to get rid of the Privy Council !!

Prior to the current efforts at establishing the Court, the concept of a Caribbean Court engaged the attention of a meeting of colonial governors in Barbados as far back as 1947. Subsequently, some twenty-three years later and less than a decade after the collapse of the West Indies Federation and with it, the West Indian Court of Appeal, the regional Heads of Government meeting in July 1970 in Jamaica, agreed on the desirability of Caribbean Countries moving towards the termination of appeals to the Judicial Committee of the Privy Council and also agreed to set up a committee of Attorneys-General to consider proposals which had been put forward. The Attorneys-General met in August 1970 in Barbados and recommended that the Privy Council should be replaced by a regional court which would assume the present jurisdiction of the Privy Council and might also have jurisdiction on matters of regional concern.

The Organisation of Commonwealth Caribbean Bar Associations (OCCBA) then established a Representative Committee to consider the matter and that Committee submitted its Report in June 1972, recommending the establishment of a Caribbean Court of Appeal in substitution for the Judicial Committee of the Privy Council and to exercise an original jurisdiction in respect of regional affairs. A similar recommendation was made by the Independent West Indian Commission in its Report, entitled Time for Action, which was submitted to CARICOM Heads of Government in 1992. I have given you these instances to underline the fact that the idea of a Caribbean Court has been percolating for a long time. The Caribbean Court of Justice is therefore, neither a new impulse nor a sudden whim in the Caribbean. It has had a long gestation period, and the perception of a rushed initiative by CARICOM Heads of Government is misconceived.

The matter of the Court in both its jurisdictions is of great importance to the future economic and social development of the Region. It is in recognition of this that most CARICOM Heads of Government, on 14 February 2001, at the Twelfth Inter-Sessional meeting of the Conference, signed the Agreement for establishing the Court. Of the two who did not, one had sought guarantees that not only the superstructure, viz., the highest regional Court, but also the lower Courts such as the magistracies, would be the subject of improvement. It is good to see that the CCJ, even before it has been established, is already exercising a positive influence for the improvement of the courts in the Region which, apparently under the existing historical dispensation, have been allowed to fall to troublingly low standards.

A second perception is that the purpose of the Court is to facilitate and expedite hanging, given the ruling of the Judicial Committee of the Privy Council in the case of Pratt & Morgan (1993), which imposes somewhat unrealistic time restrictions (five years) within which the death sentence must be carried out or else be commuted. This Privy Council ruling can amount to abolition of the death penalty by judicial fiat, given the length of time it will normally take to exhaust referrals to competent human rights bodies. The perception that the Court would facilitate and expedite hanging is therefore based on the view that, unlike the present policy of the Privy Council, it would not 'frustrate' the application of the law in regard to this particular penalty. To conclude from that, however, that the Court is being established to deal with the issue of hanging is to ignore entirely that the efforts to establish the Court commenced long, long before the Privy Council adopted its current policy in regard to the implementation of the death penalty.

A continuous curiosity in regard to this matter has been the difference in attitude by the United Kingdom to the United States of America which has maintained the death penalty and to the Caribbean countries which have done the same!

Permit me to observe that Governments have a responsibility to enforce the laws on the statute books. The people of the Caribbean have, so far, not indicated any desire to have such laws abolished or amended. In the absence of such an indication, the Courts have a duty to uphold the law. The laws of the Caribbean Community reflect the social ethos of its peoples no less than the moral imperatives of the Caribbean social reality. To be responsive, the laws of the Region must be interpreted and applied by judges internalising the values which inform the content of this social ethos. Herein lies the most persuasive argument for an indigenous court of last resort, such as the Caribbean Court of Justice, which would also bring justice closer to the people.

The third perception is that the Court will be subject to the control of the political directorate of the Caribbean Community. You must be the judge of the veracity or otherwise of this perception. Ladies and Gentlemen, the reality is that the Caribbean Court of Justice will, perhaps, be the only international tribunal whose judges will not be appointed by political representatives. Both the European Court of Justice and the European Court of First Instance comprise judges appointed by Ministers of Government. Similarly, the judges of the International Court of Justice, the Andean Court of Justice and the East African Court of Justice are elected by political representatives.

Responding to the expressed concerns, mainly of representatives of the legal profession in the Region, CARICOM Heads of Government have agreed to the establishment of a Regional Judicial and Legal Services Commission for the appointment, removal and disciplinary conduct of all judges of the Court, some of whom must note, may be selected from as far afield as other Commonwealth countries. Only the President is to be appointed and/or removed by Heads of Government, and in this case, no appointment or removal can be effected without a recommendation to that effect by the Regional Judicial and Legal Services Commission, which itself must first receive such a recommendation from a tribunal. The Commission itself will comprise eleven members, a total of six of whom will be appointed on the nomination of members of the legal profession. Indeed, some members of civil society have voiced concern about the number of members of the Commission to be nominated by the legal profession, since it is not the only important stakeholder. The view has been expressed that other stakeholders of civil society, such as the Religious Community, Trade Unions and the Private Sector, should have a role in making nominations for membership of the Regional Judicial and Legal Services Commission. Against this background, it is for you to judge how real is the presumed danger of political manipulation influence of the Court.

Another current negative perception regarding the Court, and one that is quite understandable, relates to the financial sustainability of the Court. In this context, there is concern that participating governments may not be able to meet their treaty obligations to contribute to the budget of the Court - this concern finds its roots in the track record of some Member States in contributing to the budgets of regional inter-governmental organisations, most of which suffer - to a greater or lesser degree - from financial instability. In an effort to address this concern, CARICOM Heads of Government have agreed that members of the Court must contribute in advance, five years' contribution to the projected expenses of the Court. Further, the Heads of Government have mandated the regional Attorneys-General to elaborate a financial protocol to safeguard the financial integrity of the Court. The financial protocol provides for the establishment of a Trust Fund, the proceeds of which will go towards defraying the recurrent expenses of the Court, and for the posting of a bond which could be forfeited if a Member State defaults on the payment of its contribution. These arrangements do offer a plausible measure of guarantee that the Caribbean Court of Justice will be financially sustainable. Also, let us not forget that despite the justifiable concern, the Region's Governments have maintained a University for over fifty years and a CARICOM Secretariat, I may add, for some thirty-three years.

Surrounding all these issues, and without doubt the most contentious, however, is the role of the Court as the final Court of Appeal and replacement of the Judicial Committee of the Privy Council. It is interesting to note that on this latter aspect that over the last half century or so, of the more than fifty countries then accessing the services of the Judicial Committee of the Privy Council, only about sixteen remain today, of which some thirteen are from the Caribbean. (A list provided to me of the countries which left the Privy Council since 1933 is available for reference).

This in itself may not, it must be emphasised, constitute a reason for leaving the Privy Council. Nor does the earlier advice of British Officials suggesting that the Region may be well advised to establish its own final Court. For we now have it on the highest authority, the British Prime Minister himself, at the recent meeting with CARICOM Heads in Jamaica on 29 July that the undertaking recorded in the Communiqué of the 11 May 2000 Caribbean- UK Encounter, stands. That Communiqué stated that the services of the Privy Council would be available to the Caribbean countries for as long as they wished to have it, but it also promised to help if the Region wished to establish its own Court. This understanding was issued to reverse the previous meeting's advice from the then UK Government representative, that the Region would be well advised to see about its own final Court for the United Kingdom, having subscribed to the European Convention on Human Rights, was not comfortable with having to confirm the death penalty. A similar advice, but for different reasons, was given to the Region by a former President of the Judicial Committee of the Privy Council itself.

I will not delay you with any comment with regard to assertions that the Region does not have men and women of the calibre to staff such a Court effectively, especially when some judges can be drawn from as far afield as the other Commonwealth countries!

The functioning of the Court carries a particular importance for the business community as well. In the exercise of its original jurisdiction the Court, by promoting legal certainty, is expected to enhance the stability of expectations of the investment climate and promote investor confidence across the Region. Such certainty is to be achieved by investing the Court with exclusive and compulsory jurisdiction in disputes concerning the interpretation and application of the Treaty establishing the CSME. Consequently, where, for example, a national court or tribunal is seized of such a dispute, it is required to stay the proceedings and refer the matter to the Caribbean Court of Justice for determination.

Similarly important is the role of the Court in enforcing and sanctioning the violation of various rights of nationals of the Community - your rights - relating to establishment, provision of services and the movement of capital, as mentioned earlier.

It is clear, Ladies and Gentlemen, that the boundaries within which we operate today are expanding considerably. And the membership of the Caribbean Public Services Association, beginning with Immigration and Customs Officers, Officials of Ministries and Government agencies, are being called upon to play an integral role in ensuring the recognition and enforcement of the rights and responsibilities of Governments, organisations and citizens in our Caribbean Community.

You, the public servants of the Region have a vital role to play in the growth and development of our Region, since it is you who will be called upon to provide the expertise and to utilise your institutional capacity and competence to mobilise, at the national level, the various stake holders. It is you who will be expected to coordinate national consultations and clarify national policy and positions in the negotiation of treaty obligations, rules and disciplines, as well as with regard to the decisions arising therefrom. Remember that the public servant is the one who knows what steps are feasible and should therefore clearly define for his or her Minister and Head of Government the financial, institutional, human resource and infrastructural requirements for effective implementation of decisions taken in respect of the Single Market and Economy and indeed, as regards other regional initiatives. One of these, which impacts on the free movement of skills in the Region, is the CARICOM Social Security Agreement, which enables CARICOM nationals to live and work in any Member State without losing their acquired social security benefits.

Further, it is you who, as representatives of the sovereign States which comprise the Caribbean Community, will implement the legislation enacted by your State as a Member of the Community to ensure the free movement of people, goods, services and capital. It is you who will inspect and report, for example, on issues bearing from competition policy to consumer protection to dumping and subsidies and would have to bring such issues to the attention of your respective governments so that unfair practices may be addressed at the regional level by the Competition Commission established for that purpose.

Ladies and Gentlemen, I therefore cannot stress enough that it is you who will be called upon to play a pivotal role in the establishment and sustainability of the CARICOM Single Market and Economy and the Caribbean Court of Justice, and by you, I do not refer only to those of you who make those arduous treks to Georgetown, Kingston, Basseterre or wherever else we meet to hammer out these arrangements. I refer as well to those who remain in your particular national capitals, and to advise before, and implement after. It is through all your initiatives that the citizens of the Community - the young, the old, the entrepreneurs, the professionals, the trade unionists, the students, the rural and the urban dwellers, - would be made more aware of the opportunities created by the Caribbean Community and particularly by the common economic space which is the CARICOM Single Market and Economy, and in which all our citizens may be able to achieve their potential.

Finally, I have on more than one occasion likened the regional integration movement to a structure, a work in progress as it were, and maintained that:

"... the building of that structure requires much more than the bricks supplied by the political, legal and economic masons. It requires the people of the Region to be the mortar which holds the bricks together and makes the structure sturdy."

It is my hope that you, the public servants of the Caribbean and important stakeholders in our Community, would participate fully in the creation of the CARICOM Single Market and Economy and in ensuring that the structure which we build withstands the buffeting which it will surely face in this rapidly changing globalised world.

Ladies and Gentlemen, with that exhortation, I thank you for having invited me and I proudly declare open the Thirty-First Annual Conference of the Caribbean Public Services Association.

Annex A