CCJ strikes out bid to chal­lenge ad­mis­sions process at re­gional law schools

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The Caribbean Court of Jus­tice (CCJ) on Fri­day dis­missed an at­tempt to chal­lenge the process for ad­mis­sion to the re­gion’s three law schools as dis­crim­i­na­tory against hold­ers of non-Univer­sity of the West Indies (UWI) law de­grees, say­ing that it would be “point­less” to al­low the pro­ceed­ings since it has no ju­ris­dic­tion over the Coun­cil of Le­gal Ed­u­ca­tion (CLE), which op­er­ates the schools.

In its rul­ing, the CCJ also sug­gested that changes to the ad­mis­sion process could only be made by the coun­tries that are the sig­na­to­ries to the agree­ment that estab­lished the CLE and not the body it­self.

In July, as­pir­ing Trinidad and Tobago born at­tor­ney Ja­son Jones filed an ap­pli­ca­tion for spe­cial leave against the CLE, the Coun­cil for Hu­man and So­cial De­vel­op­ment (COHSOD) and the Coun­cil for Trade and Eco­nomic De­vel­op­ment (COTED), con­tend­ing that the Re­vised Treaty of Ch­aguara­mas had been breached.

Jones al­leged that the au­to­matic ac­cep­tance of per­sons grad­u­at­ing with law de­grees from Univer­sity of the West Indies (UWI) into the three CLE-run law schools in the re­gion and the re­quire­ment for the hold­ers of “non-UWI” law de­grees to sit an en­trance exam to gain en­trance was a breach of the Treaty as hold­ers of de­grees from other uni­ver­si­ties must vie for a “very lim­ited num­ber of places,” which be­come avail­able only af­ter the au­to­matic ad­mis­sion of UWI grad­u­ates.

The CLE is re­spon­si­ble for the oper­a­tion of the Norman Man­ley Law School, the Hugh Wood­ing Law School and the Eu­gene Dupuch Law School.

“The Court noted that the reme­dies that Mr. Jones sought spoke to the oper­a­tion of the Agree­ment [es­tab­lish­ing the Coun­cil], the Coun­cil and the Law Schools and the con­duct and ac­tions of the Coun­cil. The au­to­matic ac­cep­tance of Univer­sity of the West Indies (UWI) LLB de­grees is some­thing done solely by the Coun­cil and its Law Schools. The re­quire­ment that oth­ers must write an en­trance ex­am­i­na­tion is ap­plied solely by the Coun­cil and the Law Schools,” the court pres­i­dent, Jus­tice Adrian Saunders, said when he de­liv­ered the rul­ing dur­ing a short hear­ing held at the Port-of-Spain based court on Fri­day.

Jus­tice Saunders was joined by Jus­tices Ja­cob Wit, David Hay­ton, Win­ston An­der­son and Denys Bar­row.

In a sub­se­quent press re­lease, the court said that Jones holds a Bach­e­lor of Laws de­gree from the Univer­sity of London, a Mas­ter of Laws in Oil and Gas Law, and a Grad­u­ate Diploma in Law. In 2015 and 2016, he sat the law schools’ en­trance ex­am­i­na­tions but was un­suc­cess­ful on both at­tempts. He paid the req­ui­site fees for the ex­am­i­na­tion in 2017 but did not sit the exam as he stated that he was “too dis­en­chanted and dis­cour­aged with the en­tire process.”

The re­lease said Jones con­tended that the de­fen­dants have in­fringed, and con­tinue to in­fringe, his rights and ben­e­fits un­der the Re­vised Treaty of Ch­aguara­mas, which speaks to the free move­ment of skilled na­tion­als and ac­cep­tance of qual­i­fi­ca­tion among mem­ber states, be­cause with­out a Le­gal Ed­u­ca­tion Cer­tifi­cate (LEC) “he is not en­ti­tled to prac­tice law in the re­gion.”

No ju­ris­dic­tion

The re­lease stated that on Au­gust 9th, the Caribbean Com­mu­nity (the Com­mu­nity) filed an ap­pli­ca­tion con­tend­ing that the CCJ could not hear a claim against CLE and that COHSOD and COTED could not be sued as they do not have le­gal iden­ti­ties and that Jones’ ap­pli­ca­tion was “man­i­festly ill-founded” and there­fore in­ad­mis­si­ble.

On Septem­ber 13th, 2018, CLE also filed an ap­pli­ca­tion, mak­ing sim­i­lar ob­jec­tions to the CCJ’s ju­ris­dic­tion over the Coun­cil.

Jones’ at­tor­ney Emir Crowne, it was stated, ac­cepted that COHSOD and COTED could not be a party to the ap­pli­ca­tion be­cause they had no le­gal iden­tity and sought to have them sub­sti­tuted by the Com­mu­nity.

In con­sid­er­ing whether to al­low the ap­pli­ca­tion to con­tinue against the Com­mu­nity, the re­lease said the court con­cluded that “none of the Treaty pro­vi­sions that Mr. Jones has re­ferred to (Ar­ti­cles 35, 36, 37 and 46) show even a glim­mer of such a vi­o­la­tion. More­over, the one form of dis­crim­i­na­tion that is pro­hib­ited and tar­geted by the Treaty is dis­crim­i­na­tion on grounds of na­tion­al­ity.”

The CCJ con­sid­ered the ob­jec­tion raised that the Court had no ju­ris­dic­tion over the CLE. It noted that the Re­vised Treaty of Ch­aguara­mas, which was made in 2001, af­ter the Agree­ment es­tab­lish­ing the Coun­cil, makes no men­tion of the CLE or the Agree­ment.

Fur­ther­more, the re­lease said, the Court noted that the CLE was not a prin­ci­pal or­gan of the Com­mu­nity and that it did not even en­joy the sta­tus of an in­sti­tu­tion or as­so­ci­ated in­sti­tu­tion of the Com­mu­nity and as such pro­ceed­ings could not be com­menced against the CLE as an in­sti­tu­tion of Com­mu­nity.

In read­ing a sum­mary of the judg­ment on Fri­day, Jus­tice Saunders said that in ac­cept­ing the Com­mu­nity and the Coun­cil’s con­tentions, the Court re­lied on the case of John­son v CARICAD, where a sim­i­lar ob­jec­tion to ju­ris­dic­tion was up­held in a claim brought against the Caribbean Cen­tre for De­vel­op­ment Ad­min­is­tra­tion (CARICAD), which the Court held was nei­ther an or­gan or body of the Com­mu­nity nor an in­te­gral part of the Com­mu­nity.

In view of this, the re­lease said the court found that it was even more com­pelling a con­clu­sion that pro­ceed­ings can­not be com­menced against the Coun­cil as the Coun­cil is fur­ther re­moved from the Com­mu­nity, be­ing not even an in­sti­tu­tion or as­so­ci­ated in­sti­tu­tion of the Com­mu­nity. The Court was sat­is­fied that it had no ju­ris­dic­tion over the Coun­cil and in ex­er­cise of its gen­eral pow­ers of case man­age­ment in Part 19.1 of the Rules, or­dered that the ap­pli­ca­tion for spe­cial leave to com­mence pro­ceed­ings against the Coun­cil be dis­missed.

Point­less

Hav­ing found that a claim against the COSHOD and COTED could not be en­ter­tained as they lacked ju­ridi­cal per­son­al­ity and that the claim against the Coun­cil should be struck out, he said that the court con­sid­ered whether the ap­pli­ca­tion for spe­cial leave to com­mence pro­ceed­ings should pro­ceed against the Com­mu­nity.

Jus­tice Saunders said that the court found that since it had no ju­ris­dic­tion over the Coun­cil, “it would be point­less to grant spe­cial leave to file an orig­i­nat­ing ap­pli­ca­tion against the Com­mu­nity that sought dec­la­ra­tions against the Coun­cil.” He added that the Com­mu­nity does not di­rect or con­trol the Coun­cil nor does it man­age or ad­min­is­trate the Agree­ment.

He pointed out that the Court noted that ac­cord­ing to the pa­pers sub­mit­ted, the “root of the prob­lem” for Jones and the many other per­sons sim­i­larly po­si­tioned,

of whom the Court had to be mind­ful, is that it is the Agree­ment rather than the Re­vised Treaty, that gov­erns the mat­ters they wish to al­ter.

He said that the Agree­ment es­tab­lish­ing the CLE is as much a treaty as is the Re­vised Treaty of Ch­aguara­mas. “It was not sug­gested that the Treaty over­rides the Agree­ment or that the Agree­ment has been ter­mi­nated or its oper­a­tion sus­pended by im­pli­ca­tion un­der Ar­ti­cle 59 of the Vi­enna Con­ven­tion on the Law of Treaties [VCLT]. The Court there­fore must ac­cept that Caricom States which are par­ties to the Agree­ment must in prin­ci­ple con­tinue to give full force to the Agree­ment, and the pro­vi­sions of the Agree­ment which gov­ern ad­mis­sion to the Law Schools,” he said.

Ac­cord­ing to Saunders, the Court was of the view that Ar­ti­cle 3 of the Agree­ment, which pro­vides that the Coun­cil shall give au­to­matic ad­mis­sion into the Law Schools of UWI LLB de­gree hold­ers, is “not a mat­ter of pol­icy that the Coun­cil or the Law Schools could change. Ar­ti­cle 3 would have to, and could only, be al­tered by the par­ties to the Agree­ment.”

Fur­ther, he said that the Court found that Jones’ sub­mis­sions and the Dec­la­ra­tions that he sought sug­gested that the ap­pli­ca­tion of Ar­ti­cle 3 of the Agree­ment was in­com­pat­i­ble with the Treaty to the ex­tent that such an ap­pli­ca­tion leads to an un­jus­ti­fied dif­fer­ence in treat­ment of, or dis­crim­i­na­tion be­tween, hold­ers of law de­grees from UWI and those hold­ing non-UWI de­grees.

“The Court was of the view that Ar­ti­cle 30(3) or (4) VCLT, how­ever, does not ap­ply as the Agree­ment and the Treaty do not ap­ply to the same sub­ject-mat­ter, but even if they did, Mr. Jones failed to point to any­thing in the Treaty that would make it ar­guable that the ap­pli­ca­tion of Ar­ti­cle 3 of the Agree­ment vi­o­lated or could vi­o­late the Treaty. None of the Treaty pro­vi­sions re­ferred to by Mr. Jones showed any such vi­o­la­tion…,” he said.

While dis­miss­ing the ap­pli­ca­tion, the court left it open for Jones to de­cide whether, and how, to seek the re­dress he claims.

None of the par­ties asked for costs and there­fore no award was made in this re­gard.

The full judge­ment can be ac­cessed at http://www.ccj. org/wp-con­tent/up­loads/2018/11/2018-CCJ-2-OJ.pdf.

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