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Caribbean Court of Justice Delivers for the Caribbean’s People

According to the CCJ decision....For years nationals of the 15 nation Caribbean Community (CARICOM) have complained of the discrimination they’ve experienced at the border controls of each other’s countries.  

This discrimination has ranged in many cases from extensive questioning before being allowed entry for a limited period, to arbitrary refusal of entry and immediate expulsion.

This unpleasant treatment has galled CARICOM nationals causing them to question the benefits of being part of the organisation which was set up by Treaty and which stipulates the obligations of its member states with regard to the freedom of movement of their citizens.



On October 3, in a landmark decision, the Caribbean Court of Justice (CCJ) brought at least a legal end to discrimination and denial of right of entry to Caribbean Community nationals.  If such practices continue in member countries of the Community they will be unlawful, and affected persons can seek redress from the CCJ. 

According to the CCJ decision, nationals of the Caribbean Community are legally entitled to enter and stay in each other’s countries for up to six months without restriction, unless deemed as an undesirable person.  Border officials also cannot arbitrarily deem a CARICOM national as “undesirable”.

The CCJ is not yet the final appellate Court for civil and criminal matters for all CARICOM countries, but it is not in that form that the Court made its watershed judgement.  The decision was issued by the CCJ as the Court of original jurisdiction in relation to the CARICOM Treaty.  In that form, its decisions are binding on the Community member countries and they cannot be appealed. 
 
The occasion for the CCJ’s judgement was a complaint brought by a Jamaican national, Shanique Myrie, against the government of Barbados.  Myrie claimed that in March 2011 the border authorities in Barbados violated her right to free movement under the CARICOM Treaty when she sought to enter the country.  She further claimed that she was illegally detained and deported and her human rights were violated when she was subjected to a “cavity search” described as a “finger rape”.

In a lucid, well-presented and easy to read judgement, the CCJ found for Myrie against the Barbados government on the strength of the credible evidence in her favour.  She was awarded US$38,700 in pecuniary and non-pecuniary damages.  Her legal costs are also to be met by the Barbados government.

But while the case gave redress to Myrie for her grievances, it was far more significant for its establishment of the rights of the people of CARICOM and for eliminating misconceptions of the supremacy of “national sovereignty” over “Community Law” under the Revised Treaty of Chaguaramas – the CARICOM Treaty.  

As the CCJ stated in its judgement, among the issues of Caribbean Community law with which the case dealt, was “whether and to what extent CARICOM (or Community) nationals have a right of free movement within the Caribbean Community”. 

On this matter, the CCJ was guided by the 28th Meeting of CARICOM Heads of Government in 2007 at which they 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”.

In arriving at their judgement, therefore, the CCJ did nothing more than give judicial acknowledgement and authority to a decision by CARICOM Heads of Government – the supreme decision making body of Community law. 

The Court also clarified the matters of “undesirable persons” and persons who might become “a charge on public funds”.   Up until now, both these categories of persons have been determined by border authorities based on individual country guidelines that, for years, CARICOM nationals have publicly argued discriminates against them and makes a mockery of the CARICOM Treaty.

The Court has now ruled that for a CARICOM national to be validly excluded on the basis that he or she poses a realistic threat to engage in conduct prohibited by national law, “the receiving state must show that its own nationals who engage in such conduct are routinely prosecuted or otherwise subjected to some legal sanction”.


Further the Court has ruled that no CARICOM national can be refused entry by border officials without being informed “promptly and in writing not only of the reasons for the refusal but also of his or her right to challenge that decision”. CARICOM countries are also now required to provide “effective and accessible appeal or review procedures with adequate safeguards to protect the rights of the person denied entry”.

While all of this will bring relief to all CARICOM nationals and represents a triumph for the Caribbean people in their often expressed desire to travel in the region “hassle free”, the CCJ judgement does two other very important things.  First, it establishes that being a member of CARICOM does give enforceable legal rights to every Caribbean national in relation to entry to CARICOM countries for a period of up to six months.  In this sense, it is an occasion for real celebration of Caribbean regionalism at the level of people - it is a rare occasion, but it will help to lift the worth and meaning of CARICOM.  Second, it has established that there is CARICOM Community law – devised and agreed by CARICOM Heads of Government as the principals that the Community’s peoples have elected to represent them – and that such Community law cannot be invalidated by the failure on any country to incorporate those decisions in their municipal laws.

The immigration and law enforcement departments of all Community countries should now be ensuring that the regulations and instructions given to their border officials reflect CARICOM Community law and the decision of the court.

With regard to the CCJ, the objective, impartial and learned judgement it has given should now cause all doubters to welcome and embrace it as the region’s final court of appeal in all matters.  In the case of Jamaica that argued to stay with the British Privy Council as its Court of final appeal on the basis that Jamaicans could not expect justice from a Caribbean court, Shanique Myrie stands as the symbol of that deeply flawed position.

Sir Ronald Sanders is a Consultant, Senior Research Fellow at London University and former Caribbean diplomat.
 

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20 Comments In This Article   

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RE: Caribbean Court of Justice Delivers for the Caribbean’s People

#20 Good citizen » 2013-10-14 17:28

As B- Easy stated, the right to entry does not equate to the right to work or free social service. This treaty is all about visiting. Any one who use it for any other purpose should be asked to leave. Why would you want to visit someone place for six months? Again, this sound like a relocation treaty. What a joke. The islands with the stagnant economies duped the islands with the vibrant ecocomies to signed on to this.
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Good citizen

Why not leave? Pt 2

#19 King Court » 2013-10-14 08:55

Antigua & Barbuda is often times singled out as if we are against our so called Caribbean brothers & sisters. These are the same accusations, with the same wording in the same tone only promotes ugliness, repulsive, and meaningless criticism. And the bloggers are not Antiguans!

Do a survey throughout CARICOM, and see where most migrants work and live. Then tell me, show me, demonstrate to me your preference; as to why you compared the openness of Antigua & Barbuda to racist Guyana!

There is no comparison, Antigua & Barbuda more than any other CARICOM country demonstrated what integration is all about. And I would like Antigua & Barbuda to go further and champion the removal of VISA requirements for Haitian, then we will see who is more xenophobia. PM Baldwin Spencer, the ball is in your court, time to end Caribbean Apartheid against those who liberated us.
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King Court

Why not leave?

#18 King Court » 2013-10-14 08:38

Culture is the soul of a nation, and as Caribbean people we have distinctive cultures. However, when a soul-to-soul relation is established there is a binding relationship between the two, including business and trade. Antigua & Barbuda business & trade activity conform with the opening up of the nations economy to majority Caribbean migration. They have enjoyed a livelihood of peace and economic security in Antigua & Barbuda.

Antigua & Barbuda is more open than others, so to undermine our nations cooperation with words such as xenophobia is denouncing our generosity. Why not leave?

Some bloggers will compare our nationals living abroad, working illegally to justify their insular campaign. There are many other Caribbean nationals living in developed countries too, yet the weak contrast is always made!
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King Court

RE: Caribbean Court of Justice Delivers for the Caribbean’s People

#17 Conscious » 2013-10-14 06:46

@King Court. Your comments are reflective of the demagoguery used by both Jagan and Burnham to get political power. Their is racism in Guyana as there is xenophobia in Antigua. The problem in Guyana is that neither of the two political parties are willing to risk losing their core supporterr by being more inclusive.
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Conscious

Is Antigua really ready for Caricom part 3

#16 Oberver… » 2013-10-14 01:21

I really hope one of them take Antigua to the CCJ sooner rather than later. We need to wake up. It’s either we are part of Caricom, and that the treaties we sign mean something, or we stand on our own. And I mean on our own with everything. Be it cricket, Liat you name it. We cannot have it our way only when we feel for it. And believe me as an Antiguan I am tired of those among us so called patriots that Antigua is for Antiguans, while at the same time we don’t even own our economy. All is in the hands of foreigners. Our hotels and our electricity, and our shops are increasingly getting to be foreign owned. The biggest increase is that of the Chinese businessmen. Antiguans are being marginalized by these groups and not by their Caricom brothers and sisters, who we call brothers and sisters but treat them worse than our real foreigners. I sometimes have to call it a ‘black people’s trade’. No other race in the world has this dislike for its own people. Only if it was because of political or religious reasons. And you can look at Africa today and see the same thing continuing. And to me that is the only reason that slavery was even possible. Tribal war.
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Oberver…

Is Antigua really ready for Caricom part 2

#15 Oberver… » 2013-10-14 01:21

When our Caribbean brothers and sisters come we wonder what he/she comes to do here. We do not appreciate their visit, unless it is for cricket or carnival. We do not even encourage cheap Caribbean travel for tourism. That is we could sell cheap flights only if it is in a hotel package. That way we know that they have to spend their time in a hotel and not by some friends or family. I have firsthand witness how immigration have treated my friends and colleagues coming to spend some time from Guyana and Trinidad, as if they were criminals coming to do a job. And these were decent hard working young men who come for a meeting and job training.
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Oberver…

Is Antigua really ready for Caricom part 1

#14 Oberver… » 2013-10-14 01:12

This is not an Opinion article, it’s simply a reporting of a news worthy subject. But I am glad this is brought to our focus and attention. I for one I applaud the judgment. For too long the Caribbean nations have treated each other with the utmost disrespect, and yet we call ourselves ‘One Caribbean’. We are only fooling ourselves. We treat the European, Canadian and American visitors much better. In fact when they arrive at the airport they get the smile and the courtesy of ‘welcome to Antigua’.
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RE: Caribbean Court of Justice Delivers for the Caribbean’s People

#13 my way of helping » 2013-10-13 20:54

Informative piece sir
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my way of helping

hmmmm

#12 ABLP INSIDER » 2013-10-13 20:22

hmmmm your comment seems strange........the UPP is saying that you should live here for 7 years to vote....not that you cannot come ere for 6 months....and the UK is trying to make it the law that only UK citizens can vote in national elcetions.
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ABLP INSIDER

Time to free up Haiti Part 2

#11 King Court » 2013-10-13 14:16

In addition Human Rights Attorney Nancy Anderson agrees that Haitians are not treated fairly: “They were kept in Montego Bay at a large camp, they were not allowed to come to Kingston to hear the appeals that were made on their behalf…they were being held as though they were prisoners when they were seeking refugee status. Other people have come to Jamaica seeking refugee states and they were not held in prison while waiting on their appeals to be heard”

Isn't it time for CARICOM to treat the first liberated country in this hemisphere with a sense of dignity. Time to free up the people of Haiti, and stop the racist ideology within CARICOM!
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King Court

RE: Caribbean Court of Justice Delivers for the Caribbean’s People

#10 King Court » 2013-10-13 13:56

There is a plausible case that the government of Haiti may now challenge CARDICOM imposed VISA requirement. According to Ambassador Earl Huntley, head of CARICOM Representation Office in Haiti, there is a valid case of discrimination within the Caribbean Community

“In fact I suspect that if they were to the challenge this at the CCJ in terms of the treaty they could probably win it. It is a manifestation of the attitude towards Haitians, The countries with visas have implemented this to keep out an invasion of Haitians. But if Haitians wanted to go to all the other islands they would find a way as you see now in with the boat people going to the coast of Jamaica.”




http://rjrnewsonline.com/local/haiti-could-take-caricom-imposed-visa-restrictions-to-ccj
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King Court

@ Hmmmmm

#9 SlyThatGuy » 2013-10-13 13:46

Hmmmmm, Nobody should be allowed to vote in our elections unless he or she is a CITIZEN of our country! Do you think Caricom non-nationals belonging to the same commonwealth are going to care enough about Antigua and Barbuda's future to try their best to make sure the right kind of leader is selected to take the country forward? I don't think so. Now what caring and responsible citizen of any country is going to be committed in fighting for non-citizens from other countries to have the same right to vote as he in his country?
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SlyThatGuy

iMPERFECT JUSTICE REIGNS WITHIN CARICOM PT 2

#8 King Court » 2013-10-13 12:28

Guyana, national immigration policy is no different, you need to address the ethnic discrimination within your homeland. A policy where Afro-Guyanese are forced to emigrate, while Indo-Guyanese socioeconomic status are clearly linked to governments racist ideology. There is favoritism and race that secures Indo-Guyanese with jobs, security, and the pursuit of happiness! Imperfect justice reigns within CARICOM!
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King Court

iMPERFECT JUSTICE REIGNS WITHIN CARICOM PT1

#7 King Court » 2013-10-13 12:26

Double "Sir" the verdict was clearly against the discrimination aspect of free movement, not necessarily against national legal policy governing migration. No Caribbean nationals are more persecuted than the Haitians, and this ha**ment is pellucid in many CARICOM countries. They are subjected to the worst abuse, human rights violations, and leaders in the Caribbean turn a blind eye to such atrocities. This verdict should give the people of Haiti the dignity they rightfully deserve.

You need to reflect during ALPs tenure, how many of our own citizens were ha**ed after returning from Jamaica, St. Vincent, or any suspected "drug country" Immigration and Customs are always on the ready to search, accuse, and ha** many black Antiguans, and you were connected to that racial profiling policy.
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King Court

LET MY PEOPLE VOTE PART II

#6 Student Overseas » 2013-10-13 11:08

However, I forgot to mention that CARICOM and Commonwealth nationals should follow the law of Antigua and Barbuda in order to vote in our elections.
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Student Overseas

LET MY PEOPLE VOTE

#5 Student Overseas » 2013-10-13 10:51

Let all qualified Antigua and Barbuda and YEAH all qualified commonwealth citizens vote. Even those students and workers overseas. Ever heard of absentee ballot? BS, Sinister and Juno see what they are doing in the UK.
www.express.co.uk/news/uk/425062/Warning-on-immigrant-voting-rights
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Student Overseas

Ignorance is bliss

#4 B-Easy » 2013-10-13 10:14

The right to entry does not equate to the right to work or to free social services. As long as the legal frameworks regarding employment are strengthened and enforced, there should not be an issue. What should be feared are the corrupt politicians, government employees and private sector employers who would attempt to circumvent the laws for their own selfish gain.
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B-Easy

Antigua take note

#3 Hmmmmm » 2013-10-13 09:45

Here is a judgement sent down by our own CCJ and Antigua is trying to rid it self of non-nationals on a daily basis. Even now they trying to block Caricom non-nationals belonging to the common wealth from being registered to vote some who have even been registered before and voted in the last elections held in Antigua.
Chaka what you think of your black brothers on the CCJ now. Caricom leaders please come and investigate how The UPP led Antiguan Government treating your people.
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Hmmmmm

RE: Caribbean Court of Justice Delivers for the Caribbean’s People

#2 justice » 2013-10-13 07:27

I have a serious problem with this judgement. Small island states should bear note as their independence is under threat
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justice

End of Caribbean countries as we know them

#1 Robinhood » 2013-10-13 06:55

This decision will finally allow Jamacia to rebuild its economy and
Put the rest of the islands in a bad economic situation - they will flood the
Islands with cheap workers who will repatriate their wages leaving nothing
to invest in the island where they are working.
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Robinhood

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Sir Ronald Sanders

Sir Ronald Sanders is a business executive and former Caribbean diplomat who publishes widely on Small States in the global community.

 

 

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