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News and Views by Dionne Jackson Miller

pointed commentary on current affairs in Jamaica and the Caribbean

Month

March 2013

Cutting Cabinet? NOT Symbolism! (Or Optics!)

Photo by Grant Cocranewww.freedigitalphotos.net
Photo by Grant Cocrane
http://www.freedigitalphotos.net

The discussion about whether the Cabinet should be cut has focused – wrongly – on whether such a move would save the government money. This has allowed government spokespersons to wriggle out of the real discussion, which is one about good governance and leadership.

The 2011 Public Sector Master Rationalisation Plan states that:

“The Public Sector Transformation Unit (PSTU) was established in November 2009 with the mandate to “lead, monitor, evaluate and facilitate the implementation of the restructuring of the Public Sector for efficient, effective and economical government” to realise the vision of ‘a transformed cohesive Public Sector that is performance-based, efficient, cost effective and service oriented.’”

How can we have a transformed cohesive Public Sector without a close examination of the Ministers who lead the process?

Back to the Plan:

“This exercise focused on the entire Public Sector to include the sixteen (16) Ministries and over two hundred (200) Entities including Departments, Statutory Bodies, Executive Agencies and Limited Liability Companies. The reasons for rationalisation are obvious, chief among them are the following:

1. Overlapping and duplication of mandates and functions

2. Organizations and structures that are no longer relevant

3. Shifts in mandate and core functions

4. Archaic systems and structures

5. Outdated Statutes

6. High wage bill relative to GDP

7. Lack of appropriate technology

8. Lack of inter and intra-Ministry collaboration

9. Limited financial and material resources.”

How can it be “just optics” as Transport Minister Dr. Omar Davies colourfully insisted in Parliament, to ask whether the employment of 20 Cabinet Ministers is justified?

Let us be clear. The Plan did say that:

“…after extensive consideration, the decision was taken to retain all Ministries at this time, with modification in some instances to their respective core functions. It is anticipated, that with the efficiency gains over time, specific consideration will be given to the reduction of Ministries.”

However, one of the problems we have is that each Prime Minister has the flexibility to re-structure the Cabinet as she/he sees fit once the constitutional requirement of at least eleven Cabinet Ministers is observed.  So although Prime Minister Portia Simpson Miller had criticized former Prime Minister Bruce Golding for the size of  his 18-member Cabinet, on winning the December 2012 election, she promptly named two additional Cabinet Ministers, for a total of 20.

How can it then be “symbolism” to call for an examination of whether we are getting value for money from our Cabinet Ministers?

Let me be clear. I am not calling either for a cut in the Cabinet, or for a retention of the status quo.

What I AM calling for, unequivocally, is an understanding that we cannot call for prudent expenditure of taxpayers’

Photo by posterizewww.freedigitalphotos.net
Photo by posterize
http://www.freedigitalphotos.net

money at one level and not at the other.

We cannot declare that we want to eliminate “overlapping and duplication of functions” at the civil servant level but not determine whether we have the same problem in the Cabinet.

We cannot, as the Plan does, state that we will see “mergers (that) will result in economies of scale and overall cost savings in areas to include staffing,” and not expect the Cabinet to be an integral part of that discussion.

Most of all, what I am calling for is a respectful response from the administration to the calls from civil society and a considered and thoughtful approach to the discussion.

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Jamaican Leg of Shanique Myrie Case Ends – Points to Note

Flag of the Caribbean Common Market and Commun...
Flag of the Caribbean Common Market and Community (CARICOM) (Photo credit: Wikipedia)

 

The Caribbean Court of Justice sat in Jamaica for three days from March 4 – 6, 2013 to take the evidence of Jamaican witnesses in the Shanique Myrie case. Myrie claims to have been discriminated against by the government of Barbados when she tried to visit the country in March 2011.

The claimant, Myrie, called six witnesses, while the government of Jamaica, an intervening party, called four witnesses. It is great that the public is so interested in this case, but here are a few points to note. 

1. The part of the evidence to which the public has been exposed is that which has emerged under cross examination. This is because the witnesses state their account of what happened in written statements which are then tendered into evidence to stand as their evidence in chief. In other words, you don’t see, as you would in a criminal trial, the witness verbally giving his or her account. This means that the public generally does not know the entirety of the witness’s account, its length, how many details were provided, or the depth of the account. All we have heard are the parts which the opposing attorney chose to highlight.

In other words, when we hear an attorney in cross-examination – and the same thing will happen when the court travels to Barbados – hammering away at one or two or several details – at this stage it is very difficult to say whether a witness has been “discredited” or not. What are the key issues in the case? In this case, a key aspect of the evidence is the cavity search, which the government of Barbados is denying ever took place. Was Myrie shaken on that critical aspect of the testimony? This was not an aspect dealt on in any detail in cross examination so the public cannot really make any informed view of that issue. That, of course, will be for the judges to decide.

Myrie’s witness statement was 18 pages long. The public was therefore not exposed to the vast majority of her evidence and as a result cannot at this point make any realistic or informed assessment of her evidence as a whole.

2. It is a truism in law that memories fade. It would always be unlikely for any witness to remember every detail of a matter that took place some time ago. That would be taken into consideration in assessing credibility of a witness.

3. This is not a domestic court. It is an international court with no jury, but with seven experienced judges hearing the case. The difference is helpfully explained in a rebuttal filed by Jamaica’s Deputy Solicitor General Dr. Kathy Ann Brown in response to an application by the attorneys representing Barbados to strike out the statements of three of the Jamaican witnesses. She stated that:

“International courts generally allow parties the freedom to submit any evidence they wish in order to prove the facts necessary to establish their respective cases. It is submitted further that an international court determines the relevance , materiality and weight of the evidence offered by any party and in appropriate circumstances may generally only exclude evidence if it is duplicative, defamatory or obviously irrelevant.

In contrast to the treatment of evidence at the national level …in international cases rules of procedure that govern the submission of evidence and its evaluation are less restrictive.”

 In other words, a lot of evidence will be admitted that may not have been admitted under the rules of evidence in domestic courts, and it is for the judges to sift through the evidence and make their assessments.

As  a result, one of the attorneys explained to me that the frequent objections which would normally be made in domestic court were not made, as they were allowing the court to hear all the evidence being presented. This would be why one concerned observer commented that the Barbadian attorneys were walking all over our witnesses.

4. I have also been disturbed by some of the disrespectful comments about one of the witnesses who told the court that he could not read or write. The suggestions I have heard (from Jamaicans) are that he should not have been called to give evidence. The witness has given his account of how he was treated. Why should he be denied the opportunity to do so because of his inability to read?

The courtroom can be an intimidating place for many people. Consider the lawyers flitting around in black robes – the imposing bench of, in this case, seven judges sitting on high, the way in which lawyers talk  (when in court) which almost inevitably does not sound anything like the way normal people talk, and in this case, the thick, to the ears of many of us,  Bajan accent in which the lead attorney was questioning the witnesses. And last but far from least, there was the frustrating refusal of almost everybody in this case to actually speak into the microphone – judges and attorneys alike. Add to that the fact that a witness’s natural language may have been Jamaican patois, not English. Any of these factors could have contributed to an inability to properly understand the questions being asked. Let’s be a little more sensitive in our assessment of our fellow Jamaicans.

 The upshot? Don’t jump to conclusions and pronounce the case won or lost just yet. This could be a landmark case in the region. I have no doubt that will be reflected in the ruling.

 

 

 

 

Day One of the Shanique Myrie Case

Caricom-Flag
Caricom-Flag (Photo credit: Wikipedia)

Opening Submissions

The Caribbean Court of Justice on March 4, 2013 began hearing the case of Shanique Myrie, a Jamaican woman who alleges that she was unlawfully denied entry to Barbados on March 14, 2011, because of her nationality and that she was subjected to degrading treatment including an illegal cavity search. The case is grounded in the revised Treaty of Chaguaramas, which governs the operation of CARICOM.

Day one of the proceedings saw Myrie’s lawyers making opening statements, while Myrie’s witness statement was admitted to evidence, following which attorneys for the state of Barbados began to cross examine her.

Opening statements were made by Myrie’s lawyers, Michelle Brown and Nancy Anderson.

Anderson told the Court that the case was about two of the most important rights at the level of the Caribbean Community (CARICOM) as set out in the revised Treaty of Chaguaramas which governs the operation of CARICOM, freedom of movement, and freedom from discrimination on the basis of nationality.

The case, she said, is also about one young woman traveling for the first time to another Caribbean country, who arrived there on March 14, 2011, and experienced a pleasant first few minutes in that country. She was then escorted to a waiting area, interrogated by two police officers from the drug squad seeking to ascertain if she was a drug courier, and subjected to an embarrassing, painful and offensive cavity search, Anderson said.

The treatment was in breach of the government of Barbados’ international obligations, and its obligations under the Treaty. She said there was only one reason for the suspicion of Myrie, that of her nationality,

Brown, dealing with the legal issues relating to the case, said that the court will be asked to interpret three aspects of the Treaty, in relation to freedom of movement, a guarantee that the Treaty rights of CARICOM nationals must be observed, and that fundamental human rights of CARICOM nationals must be observed.

She said it must be the standard that all CARICOM nationals be treated with respect and that they should expect to be treated with respect.

She stressed that under the Treaty, there should be no discrimination against CARICOM nationals based on nationality, and that Jamaican nationals ought to be treated in the same way as Barbadian nationals.

She said that when Jamaicans arrive in Barbados “there should be no sniffer dogs if the same treatment is not meted out to other nationals.”

The Court will be asked to find that fundamental human rights in international law should also be recognized in Community law.

Myrie is seeking declarations that Barbados has breached its obligations under the Treaty, that her rights were violated and that she is entitled to damages in compensation. She is also seeking an apology from the government of Barbados.

Caribbean Court of Justice Sitting in Jamaica – Significant

 

Caribbean Court of Justice logo
Caribbean Court of Justice logo (Photo credit: Mark Morgan Trinidad B)

The Caribbean Court of Justice (CCJ) is sitting from March 4-8, 2013 for the first time at the Jamaica Conference Centre  in Kingston, Jamaica, as it hears a case brought by a Jamaican, Shanique Myrie, against the state of Barbados.

Miss Myrie is alleging that she was subjected to discriminatory treatment by government officials when she sought to enter Barbados and that the discrimination was based on her nationality. This, she is arguing, is contrary to the Barbadian government’s obligations under the revised Treaty of Chaguaramas which governs the operations of the Caribbean Community (CARICOM).

It is a significant development for the region for a number of reasons. The discussion about whether CARICOM countries should accede to the appellate jurisdiction of the CCJ has been going on for years, somewhat obscuring the fact that the CCJ is up, running and adjudicating, and that Jamaica does in fact have access to the Court in its original jurisdiction, in relation to matters arising under the Treaty.

That simply means that if a matter relates to the Treaty of Chaguaramas, for example, trade, or as in allegations in the current case, free movement or discrimination based on nationality, the only court legally empowered to adjudicate on such matters is the CCJ.

The Shanique Myrie case brings the court to life for Jamaicans. It is sitting in real time, in Jamaican space, dealing with an issue that many Jamaicans have complained about – their treatment at the hands of immigration officials of other Caribbean countries.

Although based in Trinidad and Tobago, it had long been proposed that the CCJ would be itinerant, travelling throughout the region to hear cases. This is the first such occasion. It demonstrates to Caribbean nationals the proximity of the Court, and removes at least one layer of cost involved in traveling to the UK to access the Judicial Committee of the Privy Council. I am not going to pretend that this will make access to the Court cheap, or even affordable for many. Legal fees can be prohibitive, and as the Shanique Myrie case has shown, depending on the facts of the case, traveling costs can still apply.

Nevertheless, this exposure can only be good for the Court.

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