As most people in the Caribbean know by now, the Caribbean Court of Justice has ruled that the state of Barbados breached the right of entry of Shanique Myrie, a Jamaican (and CARICOM) national, when she tried to visit that country in March 2011. The CCJ awarded her damages of B$75,000.00 in non-pecuniary damages and B$2240.00 in pecuniary damages (damages that can be valued). You can read the ruling here and an executive summary here.
Here are a couple of points to note.
- 1. The Treaty of Chaguaramas established the Caribbean Community (CARICOM) and Common Market and was signed in 1973. The treaty was revised in 2001 to include the Single Market and Economy. The CCJ emphasized that by virtue of the Revised Treaty, and a 2007 Decision taken by CARICOM Heads of Government, CARICOM nationals now have a right of entry into member states. Yes, a right of entry!
Article 45 of the Revised Treaty states that: Member States commit themselves to the goal of free movement of their nationals within the Community.
Article 46 provides for free movement of skilled community nationals like University graduates, media workers, sportspersons, artistes and musicians. This therefore initially applied to a fairly restricted group.
But then, in 2007, CARICOM Heads met and “agreed that all CARICOM nationals should be entitled to an automatic stay of six months upon arrival in order to enhance their sense that they belong to, and can move in the Caribbean Community, subject to the rights of Member States to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds.”
The Revised Treaty, and the 2007 Decision, the CCJ said, altered the rights of states like Barbados to refuse entry to visiting CARICOM nationals.
“The basic presumption of the Barbados Immigration Act is that persons who are not citizens or permanent
residents of Barbados have no legal right whatsoever to enter the territory. As a general proposition this is a correct reflection of international law regarding immigration…The RTC, however, and more particularly the 2007 Conference Decision brought about a fundamental change in the legal landscape of immigration…”
2.Based on the 2007 Decision, there are only two bases, therefore, on which a CARICOM national can be refused entry to a member state, if he/she is deemed undesirable, or it is determined that he/she will be a charge on public funds.
But even these two reasons, the CCJ said, must be construed very narrowly.
“Undesirability is meant to be concerned with such matters as the protection of public morals, the maintenance of public order and safety and the protection of life and health… … the Court holds that no restrictions in the interests of public morals, national security and safety, and national health should be placed on the right of free entry of a national of any Member State unless that national presents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
In relation to whether the visitor may constitute a charge on public funds, the CCJ said several factors must be considered by officials:
“It appears that this is often understood as requiring the national seeking entry to have sufficient cash at hand. The Court notes that not having sufficient funds available does not necessarily mean that the individual concerned will become a charge on public funds. Generally speaking, however, it would seem reasonable for the authorities to assess whether the visitor has funds available and whether these funds would suffice during the time the Community national intends to stay in the country, taking into account factors such as the availability of a credit card and whether or not the visitor is staying with a private person or at an establishment as a paying guest.”
3.The CCJ found Miss Myrie to be a truthful and sincere witness. While the Jamaican leg of the trial was taking place, the Jamaican media made heavy weather of quite minor inconsistencies in Miss Myrie’s testimony, declaring her discredited. The assertions were always incorrect. The lawyers representing Barbados did indeed hammer away and managed to elicit some inconsistent testimony from Miss Myrie. But as the adage goes, over the course of a trial, memories fail. Miss Myrie’s memories did fail her on some points, but they proved to be quite insignificant. The core of her testimony, as outlined in her witness statement, was never shaken, indeed, was never even tested on cross-examination! That witness statement contained her very detailed, believable account of her ordeal in Barbados, including her treatment at the hands of Barbadian immigration officials, and the humiliating cavity search she was forced to endure. The CCJ acknowledged her as a witness of truth.
“(The) inconsistencies… appear to arise more from a blurred and imperfect recollection of events that took place long before her witness statement was prepared than from any deliberate attempt to deceive. Inaccuracies of this kind are understandable but they are neither of great consequence nor decisive provided that the witness’s assessment of the facts in their entirety and all the surrounding circumstances strike the fact finder as honest.”
The Court pointed to specific aspects of Miss Myrie’s testimony, including her accurate description of a room which the Barbadian officials insisted she had never entered, and her description of the cell in which she was held, which was corroborated by other Jamaican witnesses who had also been detained in Barbados, while, on the other hand, noting the identical, word for word, witness statements produced by the Barbadian officials.
“Given the totality of the evidence and its overall consistency, the Court was impressed by the sincerity of Ms Myrie and accepts the credibility of her evidence,” the Court said.
4. Importantly, the CCJ found that CARICOM Conference decisions do not need to be enacted into domestic legislation before becoming legally binding at the Community level, a decision that will have significantly implications for future meetings of the Heads of Government and may go a far way to addressing the so-called “implementation deficit” which has dogged CARICOM for decades.
In support of this part of the ruling, the Court invoked article 240 of the Revised Treaty which states that:
1.Decisions of competent Organs taken under this Treaty shall be subject to the relevant constitutional procedures of the Member States before creating legally binding rights and obligations for nationals of such States.
2. The Member States undertake to act expeditiously to give effect to decisions of competent Organs and Bodies in their municipal law.
This, the Court held, necessitated the enactment of legislation if CARICOM nationals are to be able to invoke Community law in national courts.
“Although it is evident that a State with a dualist approach to international law sometimes may need to incorporate decisions taken under a treaty and thus enact them into municipal law in order to make them enforceable at the domestic level, it is inconceivable that such a transformation would be necessary in order to create binding rights and obligations at the Community level,” the ruling said.
“Article 240 RTC is not concerned with the creation of rights and obligations at the Community level. The Article speaks to giving effect to such rights and obligations in domestic law. This is clearly reflected in its second paragraph which requires Member States to give effect to decisions of competent Organs and Bodies in their municipal law so as to enable Community nationals to enforce their rights at the national level and in the municipal courts. If binding regional decisions can be invalidated at the Community level by the failure on the part of a particular State to incorporate those decisions locally the efficacy of the entire CARICOM regime is jeopardized and effectively the States would not have progressed beyond the pre-2001 voluntary system that was in force.”
5. While accepting Miss Myrie’s testimony that she had been subjected to jeering remarks from Barbadian officials directed at her nationality, the CCJ ruled that there was not enough evidence to prove discrimination based on nationality. The Court noted that there were 27 other Jamaicans on Miss Myrie’s flight to Barbados but only one other was refused entry, there was no evidence suggesting that a significant number were taken out of the line for secondary inspection, and the statistics produced by Jamaica showed that the overwhelming majority of Jamaicans are allowed entry to Barbados, and that the percentage of Jamaican refused entry was only 2% more than other nationalities.
This is a judgment that will be studied minutely by lawyers and nationals throughout the Caribbean. The implications go far beyond Shanique Myrie’s personal situation, and affect us all as CARICOM nationals. The resulting actions – or inactions – of member states will need to be examined closely.