Editorial | Urgency on CARICOM SG matter

Although the firm was not named, the Caribbean Community’s (CARICOM’s) reported employment of outside counsel to marshal its request for an advisory opinion from the Caribbean Court of Justice (CCJ) on the legality of Carla Barnett’s reappointment as the community’s secretary general (SG) is important in several respects.

Firstly, having independent lawyers handle the matter removes, or lessens, the likelihood of claims of conflicts of interest or manipulation of the process if the issue were being handled internally. Indeed, Dr Barnett and the community’s general legal counsel, Lisa Shoman, have recused themselves from the matter, according to CARICOM chairman, St Lucia Prime Minister Philip Pierre.

More importantly, with CARICOM’s representation settled, it is hoped that the process for the matter actually reaching the CCJ will be accelerated, allowing the court to issue its opinion as early as possible. It can only be assumed that, with uncertainty over Dr Barnett’s status, the secretariat remains distracted and unable to fully focus on providing CARICOM’s members with the technical support needed to confront the global challenges facing the region.

At the same time, this case is an opportunity for the CCJ, acting in its original jurisdiction as interpreter of the CARICOM treaty, to focus on a substantial issue of community-wide relevance away from the furore over internal governance that has recently engulfed it. A demonstration of the jurisprudential rigour and authority for which the court has earned respect would help rekindle some of the support the CCJ may have forfeited because of recent events.

REAPPOINTMENT

Dr Barnett’s first term as secretary general ended in mid-August. At their summit in St Kitts and Nevis in February, CARICOM heads of government, at a leaders’ retreat, ostensibly agreed to reappoint the secretary general for a second five-year term. That decision was publicly announced weeks after the summit.

However, Trinidad and Tobago Prime Minister Kamla Persad-Bissessar, who has had a testy relationship with Dr Barnett since she was in opposition, rejected the appointment on the grounds that it had not been properly made.

Generally, decisions by the Conference of Heads of Government are made unanimously. Abstention has no effect on that rule if three-quarters of the members vote in favour, and a member absent from a vote is treated as having abstained.

Trinidad and Tobago’s argument, however, is that its foreign minister, Sean Sobers, who was acting head of delegation after Prime Minister Persad-Bissessar departed Basseterre early, was effectively disinvited from a leaders’ retreat at which the decision on Dr Barnett’s tenure was taken.

While Mr Sobers initially indicated that he might forgo the retreat for fear of becoming seasick during the boat crossing to the venue, Port-of-Spain has insisted that his position was not definitive. In any event, it says Mr Sobers was subsequently advised that the retreat was for heads of government only.

Port-of-Spain has also raised questions about whether the voting rule was properly applied in this case, whether the process for nominating a secretary general was followed, and why a matter of such significance was not specifically included on the agenda for either the summit or the retreat.

Initially, Prime Minister Persad-Bissessar was adamant that her country would not recognise Dr Barnett after her initial term ended, and even raised the prospect of reducing its financial contribution to the secretariat.

ADVISORY OPINION

However, after months of contentious wrangling, with Port-of-Spain refusing to back down, leaders at their summit in St Lucia in July agreed to have CARICOM, via the secretariat, ask the CCJ to render an advisory opinion on the matter.

The approach avoided Trinidad and Tobago taking its own case to the court, resulting in a contentious and potentially damaging win-or-lose proceeding. Port-of-Spain has said that it will abide by the court’s advisory opinion.

Last week, Prime Minister Pierre travelled to Port-of-Spain, Trinidad and Tobago, to update officials there on the status of the case and, in Castries, earlier this week, disclosed that outside counsel had been hired to pursue the matter but did not name the firm.

Under the CCJ’s rules governing advisory opinions, within 14 days of receiving a request, the court must serve copies on all member states and the secretary general.

Thereafter, the parties served have 42 days to make written submissions to the court, should they choose to do so. Member states and the secretary general must then be sent copies of these submissions and given time to respond before the court sets a date for the substantive proceedings.

The CCJ normally sets an outside limit of six months for delivering advisory opinions. The point is that, even at what is, for courts, a relatively fast pace, the question surrounding Dr Barnett’s status could drag on for the better part of another year.

In today’s fast-paced and uncertain global environment in which small countries in the region increasingly face existential risks, that is a long time. Notwithstanding CARICOM’s agreement that “the status quo with respect to the reappointment of the Secretary General shall remain unless and until the Community considers the said Advisory Opinion from the CCJ”, concerns about Dr Barnett’s legitimacy are bound to linger within the secretariat. That must affect morale.

In that regard, The Gleaner looks forward to renewed urgency in having the matter considered by the CCJ and in the court rendering its opinion.