“This is a landmark moment that will give the public the opportunity to see and hear the decisions of judges in their own words. It is another significant step towards achieving our aim of having an open and transparent justice system.”
“I and my fellow judges welcome the recording of the proceedings. We believe it will help assist understanding of the way in which the courts work and enable the public to see the way justice is delivered in an even more open and transparent manner than at present. I look forward to people to seeing the court as it actually works…”
I look forward to the day when cameras and audio recording equipment are allowed into Jamaican and other national courts of the Caribbean. In anticipation of the flurry of responses about the need to fix bathrooms, buy law reports and repair roofs and air conditioning before buying cameras, let me say I don’t think we have to wait until the government can afford to broadcast court proceedings, whenever that may be.
National news organisations would be panting at the opportunity to televise some major trials. Procedures could be worked out to avoid having lawyers and judges tripping over cameramen. Arrangements could be made for a single camera to record, with the tapes to be shared with all interested media houses, or perhaps to provide access via web streaming. Protocols can also be worked out in terms of what may and may not be televised, as has been done in the UK.
Newsrooms will have no interest in televising the vast majority of court proceedings. However, trials of significant public interest and those that involve important issues of law, constitutional or otherwise, should be televised, for transparency and better understanding of the court procedures. There are several important types of cases that do not attract security concerns, for example, apart from the constitutional cases I mentioned – think the landmark dual citizenship case – select cases in the Court of Appeal, and judicial review cases also come to mind. I don’t think blanket prohibitions are necessary. This is not beyond us to figure out.
Our traditional methods of relying on accounts of the day’s proceedings from news reporters are no longer adequate in an age of increased openness and transparency. News reporting is severely restricted in terms of the time that can be allocated to any one story. On average, each day’s proceedings can consist of five hours of testimony and argument. A radio reporter will have about 90 seconds of air time into which to condense all that. A television reporter may have all of three or four minutes. Newspapers of course, have more space, but often don’t have as much impact, and certainly don’t have the reach of television.
So I think that the time has come to go beyond our customs of the past 100-plus years. We already have in the region, in the Caribbean Court of Justice, a court which has, through technology, thrown its doors wide open to the public. Proceedings are recorded for both audio and video, and during the Jamaican leg of the Shanique Myrie case, local media houses were able to air excerpts from the proceedings for the public to hear.
We don’t have to wait to do this until “we have the money.” Let’s make a decision that it’s important, enact
the laws needed to allow it to happen, and then work out details afterwards.
I join with the Lord Chief Justice of England and Wales in saying that I too would “look forward to people to seeing the court as it actually works…”
PS: It’s NaBloPoMo in the US (National Blog Posting Month) so I’ve joined the challenge of posting every day during November.
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.
Attorney-at-law and gay rights advocate Maurice Tomlinson has applied to the Caribbean Court of Justice, for special leave to take legal action against Belize and Trinidad and Tobago.
Tomlinson has already sued TV stations TVJ, CVM and PBCJ in Jamaica for refusing to air an ad promoting tolerance towards homosexuals. You can read about those court proceedings in my posts here, here, hereand here.
His application to the CCJ is in relation to his wish to challenge the immigration laws of Belize and Trinidad and Tobago which prohibit entry to homosexuals.
Individuals or private companies (as opposed to States) can appear before the court if granted special leave, by virtue of Article 222 of the Revised Treaty of Chaguaramas where:
“(a) the Court has determined in any particular case that this Treaty intended that a right or benefit conferred by or under this Treaty on a Contracting Party shall enure to the benefit of such persons directly; and
(b) the persons concerned have established that such persons have been prejudiced in respect of the enjoyment of the right or benefit mentioned in paragraph (a) of this Article; and
(c) the Contracting Party entitled to espouse the claim in proceedings before the Court has:
(i) omitted or declined to espouse the claim, or
(ii) expressly agreed that the persons concerned may espouse the claim instead of the Contracting Party so entitled; and
(d) the Court has found that the interest of justice requires that the persons be allowed to espouse the claim.”
Court documents filed by Tomlinson reference the revised Treaty of Chaguaramas, which provides that “member states should commit themselves to the goal of free movement of their nationals within the Community.”
They also reference CARICOM’s Charter of Civil Society which speaks about fundamental rights and freedoms
including the right to free movement within CARICOM, and which requires states to respect and protect human dignity.
Tomlinson is asserting that his right to freedom of movement has been violated, and that it is an affront to his dignity to limit his movement through CARICOM because of his sexual orientation.
He says the Government of Jamaica has declined to agree to allow him to espouse the claim, stating that “there is no adequate basis” on which to do so.
In his affidavit attached to the application, Tomlinson states that:
“I am aware that…the act provides that the Minister may exempt any person. I am not prepared to apply for an exemption. If I applied for and was granted an exemption, I would be acquiescing in this unjust and discriminatory law. It would be offensive to me to be subject to questioning by State officials about the details of my sexual orientation and private life simply for purposes of determining whether I should be permitted to enter the country. I do not wish to visit Belize until all persons cast as “prohibited” by reason of their sexual orientation are free to visit the country.”
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.
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.
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.
Today I’m saying that the PNP’s posturing on the CCJ matter has been unnecessarily antagonistic and is unlikely to be at all helpful in fulfilling what they say is their goal, replacing the Judicial Committee of the Privy Council with the Caribbean Court of Justice as Jamaica’s final court of appeal. Check out my post here.
Please check out my first post on Jamaica and the Caribbean Court of Justice in which I say that twenty years after the seminal report from the West Indian Commission, Time for Action, we are still spinning our wheels. You can read it here. CARICOM leaders have a track record of delay, however, and I recently commented here on the most recent Heads of Government meeting and the progress, or lack thereof.
There’s a paragraph each on the award of the Order of CARICOM (to Mr Kamaluddin Mohammed, Trinidad and Tobago, known as Mr. CARIFTA, and who “played a leading role in laying the foundation for the Community’s social, trade and economic cooperation structures, including the Single Market”) and the 8th Annual CARICOM 10K race (I never even knew they had one, but for the record, it was won by Cleveland Forde of Guyana and Tanya Nero of Trinidad and Tobago).
Bear with me here, I’m going somewhere with this.
An Amendment to the Agreement Establishing the Caribbean Knowledge and Learning Network Agency (the what? ) was signed by Antigua and Barbuda, Grenada and Suriname, and the Secretary General of the UN sent greetings.
They discussed the global economic situation, but don’t seem to have made any decision on what to do. They did however, agree “on the need to develop a Caribbean Investment Programme to support the efforts at stabilization and growth as well as competitive production.”
What the hell does that mean? Did they decide to establish the programme or not? It sure doesn’t sound like it. They agreed that we need a programme. Maybe after another couple of summits they’ll get around to agreeing to actually establish one! And then one day, actually establish it. (If they did so agree, the writers of the communique should be more specific, I don’t take anything for granted especially when interpreting comments from politicians)).
They looked at the CARICOM Single Market and Economy (CSME) and endorsed the agreements reached at the Meeting of the Prime Ministerial Sub-Committee on CSME on 3 July 2012.
Now, I have no idea what the Prime Ministerial Sub-Committee decided, since the reports of statements made at the press conference after the meeting were full of vague nothings like this:
“”What came out of this meeting though, is a firm commitment to the CSME project, [and] it is conceded that we have some challenges to meet. We have not moved as quickly as we would have wished… There are some knotty problems which continue to bedevil us, but we must continue to wrestle them to the ground by doing some sensible prioritising.” That from Barbados Prime Minister Freundel Stuart, who chaired the meeting.
The Communique helpfully adds that “With regard to the Single Economy, Heads agreed on specific elements of the Work Programme and Timetable for implementation in the short to medium term.”
The Heads also, according to the Communique, spoke about economic joint ventures, BAICO/CLICO, children and youth, HIV/AIDS, UWI, CARIFESTA, Haiti, external trade, border issues…..
They noted…they recognised…they were updated…they welcomed…YAWN!!!!!
I’m being impolite I know, but I am bored with the CARICOM Heads of Government Summit. (I covered it once or twice, and never, ever want to do so again. Lurking outside meeting rooms and sprinting after Prime Ministers with delusions of grandeur to beg a comment or two, and then attending press conferences where little or nothing is said is not my idea of a productive use of my time.)
CARICOM Prime Ministers get together twice a year and spin their wheels. Let me be clear, I am not one of those who believes that there is no value in CARICOM. There is a lot of valuable work being done and regional co-operation taking place in areas like health, education and security.
The Heads of Government summit, however, is a grand waste of time. While the technocrats work all through the year, when the Heads get together the point is to make those political decisions which are needed to move matters forward. I don’t see that happening.
I’m not alone. James Moss-Solomon, that consummate regionalist, has been also sounding increasingly weary and impatient at the inactivity of the Heads of Government.
Two of the big issues in the region right now, are the cost of energy in Trinidad and Tobago and its impact on regional trade, and the Caribbean Court of Justice. Were either of those discussed at the Summit? I don’t know, what I can tell you is that there was no mention of either in the communique.
Instead, an organization that gets little enough done in English is now requesting “the conduct of a study to examine the possibilities and implications, including costs, of introducing French and Dutch.”
The Heads apparently did not endorse Trinidad and Tobago’s proposal to accede to the CCJ on criminal matters only. I say apparently, because there is no mention of that important issue in the communique. The Barbados Nation’s editorial comments on its surprising absence from the communique.