NASSAU, The Bahamas: “No free movement of labour” has become the rallying cry of those opposing Bahamian membership in the CARICOM Single Market and Economy (CSME). Understandably, the governmentﾴs apparent reliance on what political scientist Felix Bethell calls “popular opinion” – talk shows, town meetings and letters to the editor – as a source of informed opinion, has been less than productive for those wishing to understand what in fact is at stake.
“We elect them (governments) to make decisions not pander to the lowest common denominator and popular opinion,” Mr. Bethell said.
Leonard Archer, Ambassador to CARICOM, and Fred Mitchell, Minister of Foreign Affairs, spearhead the Governmentﾴs effort. Both men have been at pains to reassure an uneasy populace that The Bahamas has been able to exempt itself from significant CSME requirements.
The four reservations for Bahamian participation are monetary union or a single currency; free movement of people; the Caribbean Court of Justice without appellate jurisdiction and the common external tariff. And as Mr. Mitchell stated in one of his many public pronouncements on the subject, The Bahamas is a needed member within the community and its reservations will be granted.
At a recent debate, part of the Bahamas Institute of Financial Servicesﾴ annual week of seminars, former Free National Movement (FNM) cabinet minister Zhivargo Laing said that the governmentﾴs vaunted reservations were no more than a “gutting” of the revised Treaty of Chaugaramas; that The Bahamas could get all that it needed without joining the CSME.
Into this maelstrom of vested interests and competing ideas has arrived a lecture prepared by the Landfall Centre’s founder, economist Gilbert Morris. The Nassau-based centre, which does research and issues papers on finance, trade and international affairs, has been calling for a rational discourse on the issues.
The lecture, prepared for delivery to the business community, looks at trade, the judicial system and labour under the CSME.
The Landfall Centre’s paper notes that CSME’s objective is to extend rights to “every citizen of every member country similar to what such citizens enjoy in their own countries.”
Quoting Hillary Deveaux, director of the Securities Commission of the Bahamas and the Bahamas’ trade representative at the now stalled Free Trade Area of the Americas, (FTAA) talks, Dr. Morris notes that the “objective of the CSME is essentially to reach this pure state”.
Dr. Morris finds this “pure state” problematic. The viability of the CARICOM Single Market and Economy requires “a thoroughgoing repositioning and adjustment in internal policies for each nation,” he writes.
Trade
In The Bahamas, as throughout the region, governments have reserved areas of economic activity for their citizens. And these areas are protected by law.
Under CSME, Dr. Morris maintains, “every restriction on trade and every area of business once reserved for citizens will have to be opened to CSME member citizens.”
To achieve this harmonisation throughout the CSME, Dr. Morris states, will require “a thoroughgoing repositioning and adjustment in internal policies for each nation.”
CCJ
Whether they support it or not, CSME member states will have to “assent to the Caribbean Court of Justice (CCJ) in its Original (and perhaps even in its Appellate jurisdiction)”.
By this single act, Dr. Morris sees what he terms a “subtle and profound interpretative migration” into domestic law, making the CCJ, in its role of final arbiter of the Revised Treaty, the “natural tribunal for any disputes at whatever level.”
It isn’t that the role of the CCJ would be necessarily different, in its impact on regional domestic legislation from that of the Privy Councilﾑs. Dr. Morris’s concern is rather with the “miserable history of incompetence and malaise in Caribbean jurisprudence and the marginalisation of the courts in nearly all of the jurisdictions”.
The parlous state of Caribbean jurisprudence is due, in part to the Executive’s influence. According to Dr. Morris, Ambassador Archer stated that it is “the CARICOM ministerial that was going to decide what CSME means going forward”. And Ambassador Archer seems to get some comfort from this arrangement. It is an assurance that Dr. Morris does not share.
Quoting Justice Marshall in the pivotal 1803 case, Marbury v Madison, Dr. Morris notes, “Political directorates are not free to make rules as they wish. They must act according to law and they cannot both create rules and decide on the lawfulness thereof. That must fall to another body, in this case the CCJ.”
Drawing on the experiences of the World Trade Organisation (WTO) and the European Court of Justice (ECJ), Dr. Morris notes that the migration of trade and commerce disputes into national law is a natural outcome where supra national agencies assign to citizens rights and obligations already enshrined in domestic legislation.
The migration is inevitable because, as Dr. Morris points out, these “disputes deal with rights and obligations which are inherently the most pivotal concerns of domestic jurisprudence.”
Labour
Looking at the free movement of labour, one of the key reservations for The Bahamas signing on to the CSME, Dr. Morris notes that the Movement of Specific persons – media workers, university graduates, sports persons, artists and musicians – is unconstitutional.
Dr. Morris points out that Article 27 of The Bahamas constitution prohibits any form of discrimination and the “selection of specific movements such as has been advanced”.
Over the past decade, Air Jamaica increased the number of its flights between Nassau and Montego Bay. Those flights have facilitated the free movement of Jamaicans and other CARICOM nationals to and through The Bahamas. Many have stayed and work at all levels of Bahamian economy.
Conclusion
With a proposed judicial system that threatens to overwhelm domestic jurisdictions, a labour law whose requirements are unconstitutional and a trade regime that promises more confusion than benefits, at least for Bahamians, CSME is looking less attractive than its proponents claim.
Dr. Morris sums up the situation by noting that the CSME’s weaknesses are a reflection of a regional failure of “institutional discipline, regard for research and respect for intellectual analysis”. These endemic failings drive Dr. Morris to conclude that “there can be no Single Market and Economy made up of Sovereign Nations”.
by C. E. Huggins, Caribbean Net News Bahamas Correspondent
