25/06/2018 – Jamaica Gleaner. / Anthony Hylton, the opposition spokesman on physical planning, is one of the very few active politicians, among many who rail against the Caribbean Community (CARICOM), with an appreciation of how the institutions of CARICOM function and how they can be leveraged.
He has, for instance, long been an advocate for the use by the Jamaican State, its firms and private citizens, of the Caribbean Court of Justice (CCJ), in its original jurisdiction, to protect rights and privileges guaranteed by the CARICOM treaty.
Indeed, it was Mr Hylton‘s law firm that instigated the case by Shanique Myrie against the Barbados government, leading to the CCJ‘s ruling that established a right of entry for CARICOM citizens to member states, the circumstances in which entry may be circumscribed, and the minimum standards to be observed by governments in such events.
As minister of trade in the 2013, Mr Hylton imposed tariffs on lubricants exported to Jamaica by Trinidad and Tobago‘s state oil company Petrotrin when Port of Spain failed to satisfy Jamaica that the products complied with CARICOM‘s rules of origin.
Years earlier, before the formal inauguration of the CCJ he had proposed that among the first matters on which the court should be asked to provide a declaration was how Trinidad and Tobago ought to price/share its energy resources with its CARICOM partners and any other obligation, based on the Revised Treaty of Chaguaramas, Port of Spain have had in this regard.
We are, in the circumstance, hardly surprised that Mr Hylton was among the few legislators who made meaningful interventions during last week’s parliamentary debate on the Golding Report on Jamaica‘s future in CARICOM. That intervention included the observation of how the report, in its lament about CARICOM‘s supposed disjointed dispute resolution mechanisms, failed to address, in any meaningful fashion, the role of the CCJ.
Mr Golding’s task force perhaps has a point about the unwieldiness of some of CARICOM‘s dispute settlement mechanisms. Its proposal for resolving this is what many people, Mr Hylton apparently among them, will find problematic.
The task force calls for the establishment of a Central Dispute Settlement Body, similar to what exists in the World Trade Organization (WTO), to which all disputes would be referred. The body, from among a suite of options, would have settlement mechanisms to deploy, ranging from direct consultations between the parties, up to determination by a tribunal, if other systems fail.
Says the Golding Report: “A decision by the tribunal would be binding and subject to judicial review by the CCJ only on treaty interpretation and application and points of law.
“The CCJ would continue to exercise, on referral, exclusive and compulsory jurisdiction to interpret and apply the provisions of the CARICOM treaty and would be accessible to all persons, natural and juridical.”
That proposal, on the face of it, not only calls for a new institutional arrangements, but would marginalise the CCJ, which, when asked, has demonstrated, in its original jurisdiction, to be an effective arbiter of community law and a worthy mechanism for settling disputes.
Or, as Mr Hylton put it in his parliamentary remarks, the proposal gives “short shrift to the fundamental role of the CCJ in aiding the implementation process” by overemphasising the need to renegotiate parts of the CARICOM treaty “without first having the court’s interpretation of the member state’s balance of rights and obligations, as well as the benefits and burdens under the existing” treaty.
If we understand Mr Hylton correctly, member states, and their firms, should be bringing more matters to the court, allowing the CCJ, still in its formative stage, to establish a body of community law that outlines rules by which CARICOM will be guided.
In other words, there is no reason to reinvent the wheel without allowing the one recently invented, and having done well on the test drives, to work as it can.