By J. Emile Ferdinand QC
Op-Ed Contributor
THE SIGNIFICANCE of the Caribbean Court of Justice’s (“CCJ”) judgment delivered on Oct. 4, 2013 in the case of Myrie v Barbados arises more from the reasoning and related pronouncements of the Court than from the actual decision in Ms Myrie’s favour.
Ms Myrie brought the case against Barbados alleging that the treatment she received from border officials at the Barbados airport violated her rights. The core of her complaint was that she was wrongfully:
(i) denied entry into Barbados without good grounds and proper process, contrary to CARICOM Community law;
(ii)subjected to a painful and humiliating body cavity search by Barbadian border officials;
(iii)detained overnight in an unsanitary cell at the airport; and
(iv)deported from Barbados back to Jamaica the following day.
As the CCJ’s original jurisdiction allows in respect of alleged violations of the Revised Treaty of Chaguaramas (“RTC”), Ms Myrie commenced her case directly before the CCJ.
Although only three countries (Barbados, Belize and Guyana) presently use the CCJ as their final appellate Court, 12 CARICOM countries accept the CCJ’s original jurisdiction which mandates the CCJ to authoritatively adjudicate disputes concerning the RTC.
Cases decided by the CCJ have established that original jurisdiction disputes may be adjudicated by the CCJ between a company or individual and a CARICOM Member State, or between two or more CARICOM Member States, as well as between other legal entities within CARICOM.
In this most recent case, Ms Shanique Myrie, as an individual citizen of a CARICOM country (Jamaica), was able to seek via the CCJ vindication of her rights under Caribbean Community law.
Faced with conflicting evidence from the parties, the CCJ detailed its reasons why it preferred Ms Myrie’s account of her experiences at the hands of the Barbadian officials.
For Ms Myrie personally, the outcome of the case is the CCJ’s order declaring that Barbados breached her right as a CARICOM national to enter Barbados under CARICOM treaty law; and requiring Barbados to pay her compensatory damages totaling BDS$77,240.00, as well as her reasonably incurred legal costs.
But the Myrie judgment has wider and immerse importance to all citizens throughout CARICOM and to all CARICOM Member States.
The CCJ in Myrie expressly asserts the status of “the Court as the Guardian of the RTC” and notes that:
“in the area of freedom of movement within CARICOM, domestic courts or tribunals will, of course, be guided by this Court as it sets out the relevant Community law. If in the course of a domestic proceeding, new issues arise that have not been addressed by this Court, domestic courts and tribunals are required by Article 214 RTC to refer these new issues to this Court for determination before delivering judgment.” (All italics in this article being the author’s for emphasis, not the CCJ’s.)
The CCJ emphasized that:
“Implementation of the very idea and concept of a Community of States necessarily entails as an exercise of sovereignty the creation of a new legal order …. Community law and the limits it imposes on the Member States must take precedence over national legislation, in any event at the Community level.”
“The RTC … and … the 2007 Conference Decision brought about a fundamental change in the legal landscape of immigration throughout the Community. In contradistinction to foreigners in general, Community nationals now do have a right to enter the territory of Barbados and that of other Member States unless they qualify for refusal under the two exceptions …” [ie. undesirable persons or persons who may become a charge on public funds].
It is clear from the judgment that this right under Community law takes precedence over domestic laws as “it is the obligation of each State, having consented to the creation of a Community obligation, to ensure that its domestic law, at least in its application, reflects and supports Community law.”
As the CCJ powerfully pronounces:
“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. The original jurisdiction of the Court has been established to ensure observance by the Member States of obligations voluntarily undertaken by them at the Community level….”
The CCJ’s institutional independence is exceptional. Any objective analyst could not truly assert otherwise. In addition, the Court already has created a body of case law that unequivocally demonstrates this independence. Attorney General of Barbados v Joseph & Boyce [2006] refuted any misconception that the CCJ was to be “a hanging Court”.
In Gibson v Attorney General of Barbados [2010] the CCJ gave tangible expression to the concept of “equality of arms” in order to ensure fairness in a criminal trial. Marin & Coye v Attorney General of Belize [2011] strengthened the legal mechanisms for accountability of Ministers of Government by recognizing both civil and criminal consequences of misfeasance in public office.
Although it must be said that no Court’s independence or integrity is to be assessed by measuring the number of its decisions against governments, numerous decisions of the CCJ should convince any sceptic that the CCJ is worthy to be the ultimate guardian of Caribbean Constitutions, as well as of the RTC.
Caribbean citizens would be well-advised to urge all of our Governments and Opposition parties to “free their minds” and have the confidence to grasp the glorious opportunity of our generation and embrace the CCJ fully, for the benefit of ourselves and our future. Better will not come.
J. Emile Ferdinand, QC is an Attorney-at-Law and a partner in the St Kitts and Nevis law firm of Kelsick, Wilkin & Ferdinand: For more information, visit his website, www.kwfonline.com.
Note: the opinions expressed in Caribbean Journal Op-Eds are those of the author and do not necessarily reflect the views of the Caribbean Journal.