PORT OF SPAIN, Trinidad — Citing what he described as several procedural irregularities, Cabral Douglas, the unsuccessful applicant in a recent case against Dominica before the Caribbean Court of Justice (CCJ), has filed a formal complaint with the Regional and Judicial Legal Services Commission.

According to Douglas, any one of the alleged irregularities would constitute sufficient grounds of appeal, but the most serious was the attendance of CCJ president Sir Dennis Byron at a Caribbean Community (CARICOM) heads of government meeting.

“For a sitting presiding judge to be meeting with a defendant in a pending matter before his court is highly unethical, irregular and constitutes bias sufficient to overturn any decision coming from such a court or tribunal. I am there calling for an investigation into this matter from the Commission, into order to preserve and maintain the integrity of the court, particularly in light of the fact that, this is the very court asking the people of the Caribbean to adopt its jurisdiction in favour of the Privy Council as Dominica has done in 2015,” Douglas said.

He enumerated a number of other grounds for his complaint in his letter to the Legal Services Commission:

1) The fact that the proposed defendant was permitted to be heard despite filing their request to be heard out of time, and not applying for and obtaining relief from sanctions as required by rule 19.4(1) which reads:

“Where a party or an intervener has failed to comply with any rule, the direction, practice direction or any order, any sanction for such non-compliance imposed by the rule, direction, practice direction or the order has effect unless the party or intervener in default applies for and obtains relief from sanctions.”

2) The fact that the court did its own research and featured such research in its decision without ever putting the said research to the applicant to comment on.

3) The fact that the application was not decided based on the actual submissions made by the defendant. The court failed to rely on any of the submissions made on behalf of the defendant by Attorney General Levi Peter, instead choosing to rely on untested research as indicated above.

4) The fact that the court failed to properly deal with the applicant’s submissions but, again, relied on untested research without references or scrutiny by the applicant.

5) The fact that Article 36 of the Revised Treaty of Chaguaramas (RTC) inures to the direct benefit of both service providers and those contracted to receive those very services was never in dispute, this is obvious to make sense of the treaty, even the defendant agreed with this when the question was put to him by Justice Wit. Indeed the court itself agreed with this in their decision, but they said in paragraph 28 of the decision that it was the audience and not the applicant who was receiving the service, knowing very well from our submissions that the applicant was the only party who contracted to receive the service.

6) The effect of the decision is that the four Jamaican nationals denied entry into Dominica have standing in the court, even third parties (i.e. the audience) as indicated in paragraph 28, who are not privy to the contract for service can access the court for nominal damages (i.e. the price of admission), opening the floodgates for litigation, which could not possibly be the intention of the treaty, but the one person, the applicant, who contracted to receive the service is barred from the court, thereby having a discriminatory effect on the applicant.

7) The fact that not only did CCJ president Sir Dennis Byron attend the heads of government meeting in Guyana on 17 February 2017 but the court announced it had come to a decision during this very meeting. Did Byron meet with the defendant Prime Minister Skerrit? If so in what capacity? Was the pending case against the defendant discussed with the defendant prime minister? Did Byron meet with CARICOM secretary general and Dominican national, Irvin Larocque? If so, did these discussions have an undue influence on the decision?

“In any event, it is our submission, relying on R v Sussex Justices, ex Parte McCarthy (1924), which has been adopted throughout the free world and indeed the Commonwealth, that the mere presence of Sir Dennis Byron at the heads of government meeting, attended by the defendant prime minister creates the appearance of bias sufficient to overturn the decision,” Douglas said, pointing out that according to Lord Hewart in McCarthy: “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”

Douglas asserted that the CCJ’s decision in Cabral Douglas v Dominica (Original Jurisdiction) creates a problem for all investors operating in approved sectors within CARICOM’s 15-member grouping.

On the one hand, the heads of government have approved sectors in which services can be provided and received within CARICOM member states, yet on the other hand, the CCJ has now barred investors from approaching the court, when prevented from exercising these rights by signatories to the treaty in those sectors approved by the heads of government.

“This creates a serious problem for the implementation of the CARICOM Single Market and Economy (CSME). It means the CCJ, which is the judicial arm of CARICOM, will not enforce conference decisions when it’s not politically expedient to do so. This in my humble opinion brings the court and its credibility into disrepute,” Douglas said.

The CCJ in its original jurisdiction is an international court, so its decisions are binding on all signatories to the RTC, not just the applicant in this case, or Dominica for that matter, creating commercial uncertainty for all investors operating in approved sectors, he pointed out.

IMAGE: Cabral Douglas

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