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