The Myrie Order
The Caribbean Court of Justice (CCJ) decision between Shanique Myrie and Barbados (Jamaica the Intervener) continues to resonate across the region – editorials, talk shows and on the streets. What is evident is that members of Caricom need to better manage how we promote freedom of movement given our obligation under the Revised Treaty of Chaguaramus (RTC).
There is the view that significant weight was given by the CCJ to the 2007 Conference Decision by Heads of Caricom [item 45]. In simple terms: can we say that the decision handed down last week is what Heads of Caricom intended in 2007 i.e. “definite entry of six months …”. The fact that Barbados argued against the efficacy of the 2007 decision without a single intervention from another Caricom member was taken as acquiescence by the CCJ. Barbados therefore has to abide by the decision until such time a similar case in re-argued before a CCJ with justices of a different interpretation or lobby to have Heads modify the decision at the next Heads of Caricom meeting.
Loud by its silence has been the reaction of Barbados to the decision. The DNA of the Barbados government is to be slow in deliberation. One wonders though if the Prime Minister sees a need to demonstrate a departure from the norm given the psychological punch Barbadians have taken since the decision was delivered. Is there a role for the leader of the country in the prevailing circumstances?
There is general acceptance that Immigration, Customs and Police officials in Barbados need to be more efficient in the execution of their duties. The Myrie matter hopefully has embarrassed the country enough to drive needed change at our borders.
The bigger issue arising from the CCJ decision is the protocol which ALL Caricom States must establish to allow Caricom nationals to cross borders UNLESS “… the right of entry of a national of another Member State in the interests of public morals, national security and safety, and national health, the visiting national must present a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. The threat posed should, at the very least, be one to do something prohibited by national law. The national must pose a threat to do something prohibited by national law. The Court held that the principle of proportionality was also relevant to the application of Community law [Item 14 CCJ Summary].
This is the CCJ’s interpretation of the RTC when combined with the 2007 Conference Decision. There is a view however that the CCJ’s decision is coloured by the aspirational language in the RTC at the expense of the letter of the treaty. Of course it can all be clarified at the next Heads of Caricom Conference. There are lessons coming out of the EU experience which exposes the weakness of a free market. There are the borders of member countries whose economies are stronger which will be bombarded. There is currently discussion in the UK about floating a referendum to decide on the whether to leave the EU. Until then its borders continue to be peppered by the Easter Europeans.
There is something wrong with the Caricom free market model when there is mass movement from the largest members to the smallest. On this point it is is noteworthy that Antigua entered a ‘reservation’ at the 2007 Heads of Conference meeting which excludes it from allowing ‘unfettered’ access to it’s shores.
Now that we have this decision how will Jamaica treat with the Haitians? How will Barbados respond to the CCJ decision? Hopefully it will not ignore the CCJ Order like it has the Supreme Court in the Al Barrack matter.