Community law is supreme

Jan 15, 2022 Features / Columnists, Peeping Tom

Kaieteur News – The local private sector appears to have either a poor or selective memory. It seems to have forgotten that on the 2nd August, 2018, the Guyana Manufacturing and Services Association held its Annual Luncheon at the Guyana Pegasus Hotel. The Guest Speaker at that event was the distinguished President of the Caribbean Court of Justice, Justice Adrian Saunders.
In his remarks, he related to those gathered that states are not entitled to discriminate between or among regional private entities. In other words, what the President of the CCJ was saying was that a Member State of the CARICOM cannot extend preferential treatment to a local company to the disadvantage of a regional firm.
Article 7 of the Revised Treaty of Chaguaramas (RTC) states: “Within the scope of the application of this Treaty and without prejudice to any special provision contained therein, any discrimination on grounds of nationality only shall be prohibited.”
He also observed that, “This approach led the court to order one state to repay to a private entity of another state, millions of dollars in taxes that had been imposed on the private entity in circumstances where local private entities were being exempted from paying the tax.”
In another presentation entitled, “ the Revised Treaty of Chaguaramas: Conflicts and Contradictions for the Island State”, Justice Saunders had described Article 7 as a general prohibition against discrimination on the grounds of his or her nationality and further stated that this translates to a right of every citizen not to be discriminated against on grounds of his or her nationality.
Those who misguidedly argue that Guyana’s laws take precedence over a regional law are erring. It has long been held that community law takes precedence over any conflicting national law.
Recourse exists for aggrieved parties to take their case to the CCJ. In 2007, then President of the CCJ, Michael de la Bastide, addressed the Annual Dinner of the Rotary Club of Georgetown and made this observation: “When one considers such provisions of the Treaty as the general prohibition in Article 7 against discrimination on the grounds of nationality alone, and those designed to eradicate anti-competitive business conduct within the region, one might well conclude that the breach by a Member State of virtually any provision of the Treaty could give an individual or company the right to bring proceedings in the Court.”
Such proceeds have indeed been brought. Guyana was found by the CCJ to be in defiance of the principle of non-discrimination, not once but twice.
It again is in violation of the RTC. Guyana’s local content law is discriminatory against regional firms. The local content law provides for locals to enjoy as much as 90 percent of services such as rental of office space, apartments and houses and accounting services. It also carves out exclusively for locals, services such as customs brokerage, transportation, insurance and legal services. These targets prohibit access of regional firm and therefore, are in flagrant violation of Article 7 of the RTC.
They also collide with other provisions of the RTC. Article 37(1) of the RTC states, “Subject to the provisions of this Treaty, Member States shall abolish discriminatory restrictions on the provision of services within the Community in respect to Community nationals.”
Article 38 states, “Subject to the provisions of this Chapter, the Member States shall remove discriminatory restrictions in the banking, insurance and other financial services.”
The private sector, however, wants to ignore the RTC and to argue a case that Guyana’s interests come first. In a feeble attempt to defend Guyana’s recent assented Local Content law, the Private Sector Commission stated, “We therefore stand by and fully endorse the aims and objectives of the Act which are designed to ensure that Guyanese companies and nationals benefit from the Oil and Gas sector.”
Well, the PSC has to decide whether it wants to be part of the Caribbean Community or not. It has to make a choice between insularity and regionalism. It cannot, on the one hand, profess its support for regional integration and for a single market and economy then, on the other hand, seek to defend the country’s local content law which denies the rights of other Community nationals.
(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

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