The OECS Economic Union

By G.A. Dwyer Astaphan

But has the Treaty been discussed in the Parliaments of the sub-region, or in the media? Is there a general understanding of it amongst the people of the OECS? Do we know what we are getting into? Do we approve? Indeed, is our approval necessary?

Now, it may well be that the majority of Eastern Caribbean people have supported, and continue to support, sub-regional integration in principle. For sure, I do.

However, the effort thus far has not proceeded along the broadest levels of public consultation and consent, as would be expected in modern democracies.

Instead, the prime ministers have made announcements and pronouncements, they have taken decisions, and they have said: “Okay, nine months have now passed and the people have had enough time to discuss this. Therefore, we hereby confirm and declare that we have their support. And we shall now move ahead.”

Members of Parliament in St.Kitts & Nevis were handed copies of document the day before last week’s sitting when the Resolution on the Treaty was presented, and they were told that they would have an opportunity to debate it fully, not at the next day’s sitting, but at a later date.

Then the Prime Minister hopped on a plane to St. Lucia to sign the Treaty.

(As an aside, I can tell you that with the LIAT Pilots’ strike going on at the time, one leader got to St. Lucia late.

Allegedly, he was told by the Chairman that certain decisions had been taken in his absence and that they would be recapped for his information.

But that did not sit at all well with the late-arriving leader, and he told the Chair, in language as colourful as the prettiest costume that you will find in a Vinci Carnival, that the OECS Heads’ Meeting was not a meeting of the Cabinet in Basseterre, and that no decisions would be rammed down his and his country’s throat.

Quite a stir was created.

It is not difficult to conclude that OECS governments seem to have had little appetite for full parliamentary and public debate, and far less for referendums (which they seem to fear) on this Treaty which, given its importance and implications, demands maximum public involvement.

And this ought to have been done before any signing of the Treaty

But our prime ministers do things their way. Or, put differently, we let them do things their way, instead of forcing them to do things the right way.

However, this time around they could run into a brick wall.

And here is why.

The Revised Treaty purports to establish an economic union, transforming a common market into a single economic space with absolutely free movement of people (whether skilled or unskilled, employed or unemployed), goods and capital, common external tariffs, harmonized fiscal and monetary policy, and so on.

However, there is a view that this Economic Union cannot work in the absence of political cooperation or even a political union of sorts. Hence, the move to create a supranational entity empowered to make laws in specified matters, which laws would govern all Member States.

Matters such as:

1. common market and customs union;
2. monetary policy;
3. trade policy;
4. maritime jurisdiction and maritime boundaries;
5. civil aviation;
6. common commercial policy;
7. environmental policy; and
8. immigration policy

There may be at least two contradictions in the Treaty.

Firstly, it states at Article 5.5 that “nothing in this Treaty requires a Member State to act prejudicially to the requirements of public participation and discussion which flow from good governance in a democratic society”. Yet it is clear that the path taken did not include broad “public participation and discussion”; at least not in St.Kitts & Nevis.

Secondly, although one of its goals is to defend the sovereignty of  Member States (as was the case in the original Treaty), this Treaty is still  seeking to erode that sovereignty by taking away the legislative authority of the Parliaments of the Member States in a number of critical areas of governance, and vesting those powers in a supranational entity.

But perhaps the most critical questions are: Do the Constitutions of the Member States allow their respective Parliaments to cede their law-making power to the OECS? And if they do, what is the correct way forward?

Now…a little background.

Given the fact that decisions taken by the OECS Authority are not automatically legally binding and enforceable in Member States, and that because, in order to have legal effect, these decisions first need to be incorporated into local law (which itself brings into play local legislative schedules, possible public support or opposition, and other issues), the speed of the OECS integration process has been somewhat slower than desired.

As a result, the ‘big brains’ came to the conclusion that because of the failure of our prime ministers to effectively lead the process in a timely and efficient manner, we, the people of the sub-region, must now cede the sovereignty of our parliaments by empowering these same prime ministers to pass laws which our respective legislatures ought to have passed (and can still pass) in an efficient and harmonized manner, and with the full participation of the body politic of the sub-region.

In other words, for their failures in this regard, our prime ministers are now ‘punishing’ themselves by grabbing even  more power than the ‘too-much’ that they already have. They aren’t asking for the ‘punishment’; they’re grabbing it.

Worse yet, they will be a law-making body without having to accept the advice or receive the consent or the assent of any person or entity.

And even if one or two of them get voted out of office every ten to fifteen years, the system in operation at OECS level will continue.

Further, if they are formed into the ‘Parliament’ of this new supranational entity, then there may be additional issues for the judiciary itself, as well as for the relationship between the judiciary and the other branches of government at both OECS and local levels, given this ubiquity of the prime ministers.

This is quite troubling.

And what happens when this law-making body decides to pass laws that have financial and fiscal implications for the taxpayers of the OECS?

In the St.Kitts & Nevis General Elections of January25, 2010, did we vote for this? And did we vote for Ralph Gonsalves, Baldwin Spencer, Tillman Thomas, Stephenson King and Roosevelt Skerritt, none of whom is eligible to run in an election in this country, to be legislators for the Federation of St.Kitts & Nevis?

Did I miss something?

There are at least two views on the constitutionality of all of this.

The first is that an integration treaty such as this creates a new, supranational entity which itself raises uncommon concerns. Our Constitutions confer the power to make laws on our Parliaments. And so any decision that seeks to transfer that power to the OECS Authority would be ultra vires the Constitutions, and would accordingly first require appropriate constitutional amendments in order to be valid.

The second view is that because of their competence under the Constitutions to “make laws for the peace, order and good government”, and also because the Constitutions do not expressly prevent them, our Parliaments are free to the transfer their legislative power by simply passing common legislation. So no constitutional amendment would be required.

I favour the first view.

And even if lawyers advising the OECS agree that the second view is feasible, I believe that they will still caution governments that pursuing that path could lead to judicial intervention, which would take time and money, and could cause widespread embarrassment.

So they will advise governments to be smart and to go the path of constitutional amendments in Member States.

But will the prime ministers listen? If they do not, challenges can be expected.

And there’s your brick wall.