The CCJ creates history in a landmark decision
Shanique Myrie is a Jamaican national who was detained at the Grantley Adams Airport in Barbados upon arrival on March 14, 2011 and deported the following day to Jamaica. She alleged that she was subjected to a humiliating body cavity search in insanitary conditions. Ms Myrie instituted legal proceedings at the Caribbean Court of Justice in its original jurisdiction on January 12, 2012. She claimed that her right of entry without harassment under Article 45 of the Revised Treaty of Chaguaramas (‘Revised Treaty’) and a 2007 Decision of the Conference of Heads of Government (‘Conference Decision’) was violated. Ms Myrie also claimed that she was discriminated against on the ground of her nationality in violation of Articles 7 and 8 of the Revised Treaty. The Jamaican Government appeared to have put its weight and resources into the case on Ms Myrie’s behalf.
Barbados denied all of the allegations and claimed that Ms Myrie was rightfully refused entry because she was untruthful about the identity of her Barbadian host. Barbados also argued that the 2007 Conference Decision did not create for Ms Myrie a legal right but that if it did, it was not an absolute right and could not be judicially reviewed. Having satisfied itself that it had jurisdiction the court proceeded to take evidence in sittings in Jamaica and Barbados. Submissions were made at its seat in Trinidad and Tobago.
The court reviewed the evidence and found in favour of Ms Myrie on the facts.
The court then addressed Barbados’s objection to the 2007 Conference Decision, namely that it was not a decision being merely “agreed” not “decided” and a reservation having been entered by Antigua and Barbuda. The 2007 Conference Decision “reiterated [Caricom’s] commitment to the Free Movement of Community Nationals” who “should be allowed an automatic six month stay on arrival in another Caricom member State.” The court found that there was no distinction between ‘agreed’ and ‘decided,’ that the reservation of Antigua and Barbuda did not violate the principle of unanimity and that Caricom organs and institution had treated the statement as a decision.
Barbados invoked Article 240 of the Treaty of Chaguramas and argued that to be binding the 2007 Conference Decision must be enacted into domestic law. Article 240 provides that “decisions of competent Organs…shall be subject to the relevant constitutional procedures of the Member States before creating legally binding rights and obligations…” The CCJ rejected the argument and held that Article 240 was not concerned with the creation of rights and obligation at the Community level but with giving effect to them at the domestic level.
If domestic enactment was a condition precedent then an anomaly would result when some states incorporated and some did not. This would destroy “certainty, predictability and uniformity of Community law.”
The CCJ explained that the right of entry is part of the broader right of free movement of Caricom nationals within the Community, subject to public interest considerations. An essential element of that right is entry without harassment or the imposition of “impediments.” The court imposed an obligation “to give, promptly and in writing, reasons for refusing entry to a Caricom national” who must be allowed to consult an attorney, a consular official or a family member.
The court acknowledged the right of member states to limit the right of entry of a national who is undesirable or would become a charge on public funds.
Undesirability, it stressed, must relate to the protection of public morals, the maintenance of public order and safety and the protection of life and health. It ruled that the threat must be genuine, present and sufficiently serious to affect one of the fundamental interests of society. These, high standards indeed, must be interpreted narrowly and strictly and the burden of proof is on the member state, according to the court.
The principle of proportionality must also be applied, meaning that a minor violation ought not to attract the major penalty – deportation.
The court found that Ms Myrie was not a victim of discrimination in violation of Article 7 or that she was treated less favourably than nationals of other states in violation of Article 8. There was no evidential basis to support the arguments in favour of these allegations.
The court decided that Ms Myrie was entitled to compensatory damages because of the violation of her right to enter Barbados without harassment or the imposition of impediments which transpired between her arrival in Barbados and her expulsion, including the subjection to a body cavity search. She was awarded pecuniary damages of $2,240 and non-pecuniary damages of Bds$75,000.
The refusal of entry to Caricom nationals by member states has been a serious complaint for many years particularly against Barbados.
This historic decision has defined the rights of entry for the first time in the Region’s history. Those member states which have been guilty of violating both the letter and spirit of the Treaty of Chaguramas, at least in relation to entry into their countries, will now understand that they have obligations, that visitors who are Caricom nationals have rights and have to be treated with dignity and according to law.