Alicia Nicholls
Burgeoning case backlogs have forced many Commonwealth Caribbean countries to take a harder look at the promotion of alternative dispute resolution techniques as opposed to litigation to solving disputes. This article discusses whether alternative dispute resolution (ADR) offers a viable solution for reducing Barbados’ large case backlog. Full article available here: ADR A viable solution for reducing Barbados case backlog_Nicholls.
Alicia Nicholls
The big legal news rippling across the Caribbean Sea this week is the revelation that the Tillman Thomas government in Grenada has made history by being the first Commonwealth Caribbean territory to abolish criminal defamation and thus bring its libel laws, at least on this front, in conformity with the exigencies of a twenty-first century democracy.
According to the International Press Institute (IPI), Grenada’s Criminal Code (Amendment) Act of 2012 abolished sections 252 and 253 of the Grenada Criminal Code which imposed criminal sanctions for libel. The repeal was a big victory for the International Press Institute which has been ardently campaigning for the abolition of criminal defamation in all Commonwealth Caribbean States, advocating instead the reliance on civil actions exclusively. Seditious libel however still remains on the books as a criminal offence under s 357 of the Criminal Code. For a full background on the work of the IPI on this front, see here.
Freedom of the press is held to be one of the central tenets of a functioning liberal democracy. The rationale behind press freedom is that a robust and independent press keeps public officials in check by informing the populace of their actions, calling them out on their shortcomings, while also providing information which would allow the public to make informed decisions in their own interest. However, the existence of antiquated defamation laws on the statute books of Commonwealth Caribbean countries has led many to criticize these vestiges of the colonial era as fetters on the efficacy of the fourth estate in scrutinizing our public officials, and thereby serving as a barrier to true democratic governance.
The zeal with which Commonwealth Caribbean territories have tended to cling to our pre-independence laws has been heavily criticized, but in the case of our libel laws, the situation becomes even more perplexing. While it is accepted that a delicate balance must be maintained between the much deserved need to protect a person’s reputation and the equally deserved right of the public to access information, the harshness of Commonwealth Caribbean countries’ libel laws can be contrasted with the iniquitously broad freedom of expression privileges granted to parliamentarians on the floor of parliament under the convention of parliamentary privilege. Is the freedom of speech of parliamentarians therefore more valuable than that of those whose role is to serve as the watch dogs of our post-independence democracies?
Defamation legislation throughout the Commonwealth Caribbean ranges in vintage from semi-modern to archaic acts dating back to the mid-nineteenth century. With sluggish statutory change, if any, it has been up to the common law to adapt the laws of defamation to the needs of modern twenty-first century democracies. The defence of qualified privilege is one which has not generally found much success in case law before the landmark House of Lords decision in Reynolds v Times Newspapers Limited [2001] which recognized the duty of the press to communicate to the world at large and also recognised a public interest defence which commentators have called the “Reynolds defence”. In Jameel v Wall Street Journal Europe, Lord Nicholls of Birkenhead further clarified the Reynolds defence by giving some guidance on the factors to be taken into consideration when deciding whether the defence of qualified privilege applies.
Criminal libel prosecutions remain alive and well in the Caribbean, although their frequency varies according to territory. In the recent Grenadian case of George Worme and Grenada Today v Commissioner of Police of Grenada (2004) which had been referred to the Privy Council, Lord Rodger importantly rejected submissions by counsel that then section 258 was too narrowly drafted to allow for the raising of the Reynolds defence. However, the court also regrettably held that criminal libel was “a justifiable part of the law of the democratic society in Grenada”. Rulings such as this reinforce the cloud of fear hanging over regional journalists in execution of their ‘watch dog’ function.
Penalties for criminal libel vary across the region. Before its abolition, section 252 of the Grenada Civil Code provided that the penalty of conviction for negligent libel was imprisonment for six months, while two year imprisonment existed in the case of intentional libel. The Barbados Defamation Act (Cap 199) of 1997, one of the more ‘modern’ acts, is a bit more lenient at Article 34(3) as it gives the Court the discretion to impose a fine of up to $2,000, imprisonment for a term not exceeding 12 months or both.Despite the talks and promises of libel reform decades after many of us have achieved independence, our journalists still have the risk of criminal prosecution as an ‘occupational hazard’ of their profession. It is little wonder therefore that self censorship by media houses is endemic in several Commonwealth Caribbean states, including Barbados. It is a practice which, though done to shield these entities from prosecution, is contrary to the public interest.
Moreover, stringent libel laws have tended to make the constitutional guarantee of right to access to information virtually nugatory, particularly where freedom of information acts do not exist. In Barbados, the proposed Freedom of Information Act which was supposed to buttress the constitutional guarantee of right to access to information under section 20 of the Constitution of Barbados by, inter alia, providing greater public access to information held by government bodies, has not yet been passed and neither have the proposed defamation reforms. On the contrary, the UK, from whom our defamation laws were inherited, abolished criminal libel and sedition per section 73 of the Coroners and Justice Act 2009 and is currently in the process of passing a new Defamation Act (currently HL Bill 41) which is aimed at modernizing that country’s defamation laws.
In countries which pride ourselves as democratic states, it is high time that we purge our statute books of these archaic and anti-democratic laws. As seen in Grenada, this is not a move most politicians would make without strong lobbying by local, regional and international civil society. Despite this, Grenada’s big step towards the complete removal of criminal defamation should be applauded and one can only hope that other post-independence Commonwealth territories, including Barbados, would follow suit in the interest of greater democracy.
Alicia Nicholls is a trade policy specialist and law student at the University of the West Indies – Cave Hill. You can contact her here or follow her on Twitter at@LicyLaw.
Alicia Nicholls
Another daughter of the soil has been called to serve on one of the world’s most eminent and most important intergovernmental organisations. This time it is Barbados’ Chief Medical Officer, Dr. Joy St. John who has been appointed Chairwoman of the Executive Board of the World Health Organisation (WHO).
Dr. Joy St. John, a medical doctor, joins a growing list of Barbadian and CARICOM nationals who have been called to serve in the highest echelons of some of the world’s most prestigious international bodies. Casting our minds a bit back in time, one would recall another Barbadian woman who made a notable contribution to public health issues at the international level. Barbados’ former Governor-General, Dame Ruth Nita Barrow, served as a nursing advisor to the WHO and the Pan-American Health Organisation for more than a decade. Though a midwife and nurse, Dame Nita had also served as President of the International Council on Adult Education in 1975 and 1986.
Outside of the health arena and more contemporarily, Mrs. Elizabeth Thompson, former Barbados Labour Party (BLP) cabinet minister and well-esteemed environmental lawyer and negotiator, was appointed as a United Nations Assistant Secretary General. In 2010 she was appointed by UN Secretary General Ban Ki-Moon as Executive Coordinator of the UNCSD Rio +20 Conference. In the field of trade in intellectual property, Mr. Trevor Clarke is the World Intellectual Property Organisation (WIPO)’s Assistant Director General for the Culture and Creative Industries Sector. Further in the area of culture, Alissandra Cummins, the Director of the Barbados Museum and Historical Society, is currently the Chairperson of the Executive Board of UNESCO (2011-2013) and had also made history as being the first Caribbean and female president of the International Council of Museums between 2004-2010.
We in the Caribbean often regard ourselves as small states. Indeed, by our geographic, demographic and economic size, we are. However, our contribution in international organisations, particularly on issues of greatest concern to us as small states, should serve to us as a reminder that while we may appear as no more than little dots on a map, our footprint in these organisations often belies our size. One would recall that it was Trinidad & Tobago under the leadership of then Prime Minister A.N.R. Robinson which was instrumental in pushing for the establishment of the International Criminal Court (ICC). Again in the field of law, eminent Jamaican law professor and former principal of the Norman Manley Law School, Dr. Stephen Vasciannie, served on the prestigious UN Law Commission whose mandate is the codification and progressive development of international law.
There are many others that can be listed but I have made my point. The ability of Caribbean people to assume and function effectively in these key positions and the faith that other nations have put in the representation of our nationals stand as testament and vindication of the solid investment that our governments have tended to put in developing our greatest resource, that is, our people.
I wish Dr. St. John all the best in her new position as she continues to fly our Barbadian and CARICOM flags high.
Alicia Nicholls is a trade policy specialist and law student at the University of the West Indies – Cave Hill. You can contact her here or follow her on Twitter at @LicyLaw.
CARICOM countries could soon make up the majority of member states in the Bolivarian Alliance for the Peoples of Our America (ALBA). At the bloc’s 11th Summit last month in Caracas, both Suriname and St. Lucia formally expressed their intention to become members of the eight-member group. They would join four other CARICOM countries which are already ALBA member states: Antigua & Barbuda, Dominica, St. Vincent & the Grenadines and more recently, Haiti.
The wave of interest in ALBA, a regional bloc which like CARICOM envisions deep integration between its members, comes against a backdrop of stagnation and crisis in the CARICOM integration process. While ALBA leaders at their 11th Summit agreed to move full speed ahead to deepen their integration with the creation of a single monetary union – ECOALBA, CARICOM Heads of Governments caught most people by surprise last year when they inexplicably put the CARICOM Single Market and Economy (CSME) on ‘pause’ during their retreat in Guyana. It was a decision for which Prime Minister of St. Vincent and the Grenadines, Dr. Ralph Gonsalves recently expressed regret. In a candid letter sent to the Secretary General of CARICOM which effused both lament and frustration at the current ‘standstill’ in CARICOM, Dr. Ralph Gonsalves made mention of the augmented interest by CARICOM countries in courting ALBA. He predicted that more CARICOM countries were likely to follow suit and rhetorically asked what would be the implications of this for CARICOM.
ALBA is one of the most well-known South-South trade initiatives in the Western Hemisphere, not just because it was the brain child of the outspoken and no-nonsense President of Venezuela, Mr. Hugo Chavez, but because it potentially represents a more equitable alternative to the traditional neoliberal model of regionalism. It was launched by Venezuela and Cuba in 2004 originally as the Bolivarian Alternative for the Americas, and as an alternative to the now moribund Free Trade Area of the Americas which had been pushed by the United States. Drawing inspiration from the political thought of freedom fighters Jose Marti and Simon Bolivar, ALBA’s stated aim is to be a political, economic and social alliance which seeks to protect the independence, sovereignty, self-determination and identity of its Member States, and to protect the interests of the peoples of the South from political and economic domination.
If the question of ALBA’s threat to the CARICOM integration process is considered purely on the compatibility of ALBA CARICOM countries’ obligations, the flexibility which ALBA gives its members in terms of the initiatives which they can choose to be a part of means that ALBA CARICOM countries are free to refrain from initiatives which could conflict with their CARICOM and OECS obligations. In the declaration of accession signed by St Vincent and the Grenadines for example, the Gonsalves Government made clear that as a regional movement ALBA does not alter but complements its obligations in other regional movements such as the OECS and CARICOM. Thus, St Vincent and the Grenadines, like the other OECS members of ALBA, has not introduced the new regional trading currency – the sucre in light of its membership in the OECS’ monetary union.
A more immediate domain for conflict between ALBA and CARICOM obligations appears to be in the area of foreign policy. Foreign policy coordination is one of the stated objectives of CARICOM per the Revised Treaty of Chaguaramas and one of the pillars of functional cooperation. While ALBA Members are given flexibility in foreign policy, ALBA as a group has been outspoken on several current conflicts, including throwing support in a recent declaration solidly behind Argentina in the recently escalating Falkland Islands dispute between that country and the United Kingdom. The decision was made to join several other Latin American countries, including Argentina, to prevent Falkland-flagged ships from docking at their ports. Although the ALBA CARICOM countries have not all come out and said whether their individual stance was in consonance with that of ALBA’s, one would not be unreasonable by taking their silence as agreement with the ALBA position. This position however is diametrically opposed to that taken by the non-ALBA members of CARICOM which have supported the Falkland Islands’ right to self-determination, that is, their right to remain British. Dr. Gonsalves’ stance on the issue caused some controversy in his country. However, on a larger scale, such divergence in policy position could be evidence of the potential threat of further fragmentation in the region’s foreign policy coherence.
Politics aside, there is no doubt that the main attraction of ALBA to those CARICOM countries which have acceded so far is the developmental support provided by its founding countries Venezuela and Cuba. Havana has long been a development partner of many countries in the region. Through bilateral cooperation agreements signed between the Cuban government and the governments of the region, the people of the wider Caribbean have benefited from free eye care in Cuban hospitals under Operation Miracle, scholarships to study medicine at Cuban universities and free health care by Cuban doctors. Haiti has also benefited from food and literacy programmes.
Under the Chavez administration, Venezuela has also taken a more active developmental role in the region. Since the establishment of the PetroCaribe Initiative in 2005, some 17 Caribbean countries, most of which are non-ALBA members, have benefitted from this arrangement which allows them to purchase oil on preferential terms of payment. Only part of the cost is paid up front and part can also be paid through the provision of agricultural goods. The remainder is repaid over a 25 year period at a 1% interest rate. The PetroCaribe deal has not been immune to criticism, and both Barbados and Trinidad & Tobago have not joined. Though such an arrangement helps in the short term to conserve much needed foreign exchange, it means that those countries which take oil on these terms are indebted to Venezuela in the longer term. Moreover, while PetroCaribe aims to promote energy security through the provision of “cheap” oil, Venezuelan fuel exports under the Agreement have decreased over time due to less available supply. Another criticism raised is that the ‘cheap oil’ provided under PetroCaribe increases the region’s dependence on the importation of fossil fuels. This latter argument is less persuasive given the increasing interest shown by CARICOM countries in renewable energy generation, through for instance geothermal, solar and wind energy.
The financial support offered by ALBA is highly attractive to debt-ridden CARICOM countries faced with an uncertain global economic and financial climate. Loans are given at favourable terms and without most of the usual conditionalities insisted on by traditional donors. Through its loan funds, ALBA has provided funding for projects, including infrastructure, housing and agriculture projects in Dominica for example. St Vincent and the Grenadines also received a loan from the ALBA Bank for the construction of a new international airport.
The availability of credit under ALBA’s several funds can be contrasted with the limited capitalization of the CARICOM Development Fund. The CDF is provided for under Article 158 of the Revised Treaty of Chaguaramas as a fund to provide financial and technical assistance to disadvantaged countries, regions and sections within the grouping. The limited capitalization of the CDF, plus problems with the Petroleum Facility and the perceived lack of sensibility to the OECS countries’ unique vulnerabilities, were some of the many shortfalls of CARICOM about which Dr. Gonsalves complained in his previously mentioned letter. Frustrations like these over ill-functioning regional aid mechanisms plus the more readily available economic aid under ALBA, could lead to more CARICOM countries turning their attention to ALBA.
One area in which CARICOM arguably maintains an upper-hand over ALBA is in trade. With a population of 70 million people, ALBA represents a larger market for regional goods than does CARICOM. That being said though, the export capabilities of the ALBA CARICOM remain too weak to effectively take advantage of this. It is true that over the period 1999-2008, it is reported that average yearly trade between Venezuela and Antigua & Barbuda was USD 6.5 million, between Venezuela and Dominica, USD 179 million and between Venezuela and St. Vincent and the Grenadines, 4.5 million dollars. However, given that petroleum trade accounts for most bilateral trade between Venezuela and ALBA CARICOM countries, the balance of trade is skewed in Venezuela’s favour. While trade asymmetries do exist within CARICOM as well, the regime created by the Revised Treaty of Chaguaramas envisions the freedom of movement of goods, services, people (skilled) and capital within the Community, the right of Community nationals to establish businesses in other territories, as well as a competition commission which is charged with ensuring the rules of the market are respected. ALBA has not as yet reached this level of integration. That being said, however, the large gulf between what the Revised Treaty provides for and what operates in practice in CARICOM has led to frustration that the expected benefits are not being seen. Moreover, ALBA does intend to become an economic union, something which continues to elude CARICOM.
Although there is an undisputed role for ALBA as a development aid and trade partner for our countries, their main integration focus should be on deepening CARICOM integration. CARICOM is more than a trade group. It was founded on the vision of our regional founding fathers who believed that strength comes not through parochialism but through the political, economic and social unification of a people already united through a common history and a shared culture and values. Regardless of its many shortcomings, CARICOM, its organs and associated bodies, have played a tremendous role in the region for the past nearly forty years and can play an even greater role once a serious attempt is made at reform by our Heads of Government.
Moreover, although Venezuela is a useful ally for countries in the region by virtue of its stronger bargaining power in the international community, CARICOM’s interests as small states and those of Latin American countries, including Venezuela’s are not always complementary as seen in the Banana Wars in the WTO. It should also not be forgotten that Venezuela continues to have border disputes with two CARICOM States (Guyana and Dominica) which have still not been resolved and for which Venezuela has not changed its position. A further caveat to bear in mind is that given the strong ideological divide in Venezuelan politics, there is no guarantee that whichever president eventually succeeds President Chavez would be leftist in political orientation or that he or she would be as sympathetic as his or her predecessor to the region’s concerns, or be committed to continuing ALBA and its component programs. Therefore, there is some concern about ALBA’s survivability in a post-Chavez era.
The real threat to CARICOM is not ALBA though, but CARICOM itself. Impatience with the slow process of integration and its associated benefits at the CARICOM level has had as its natural corollary a desire to explore more seemingly attractive alternatives. It is not surprising therefore that the poorer countries in the region, and some of the larger countries like Suriname as well, have set their compass to ALBA for the superior economic security it provides and its seemingly better alignment with their interests. Unless our Heads of Government act seriously on their commitment made at the last inter-sessional meeting to formulate a plan of action designed to reform CARICOM to make it more effective, there could be a day when all of our countries eventually turn their backs completely on CARICOM in favour of other blocs which they believe have both the ability and will to better cater to their peoples’ interests and needs. That would be a sad day.
Alicia Nicholls is a trade policy specialist and law student at the University of the West Indies – Cave Hill. You can contact her here or follow her on Twitter at @LicyLaw.
Caribbean Trade Law and Development