As the excesses of the Christmas Day just past recede in the national consciousness, we prepare this week to welcome in 2016. At the close of this year, there seems to be a popular consensus that the local economy is on the up, although this assertion remains unsupported on most occasions by any evidence, persuasive or at all.
I suppose a healthy optimism is in itself a Very Good Thing, although the more cautious among us would wish for more authoritative empirical proof of this most fortunate event.
In this, the final column for 2015, I propose to touch on some matters across the region, fully cognizant of the risk that I may be accused by some of the citizens of those states of interference in their national affairs. That is, of course, provided they disagree with my views, as the Ambassador of the European Union would have discovered recently when he dared to offer an opinion on corporal punishment that differed radically from the antediluvian views of some locals who will not be swayed one jot or tittle from their simplistic and fundamentalist literalism that the “rod” in Proverbs 13:34 sounds too much like the “tambrin” (tamarind) rod, a favoured instrument for the parental infliction of pain in my youth, to mean anything else.
Clearly, the Ambassador’s opinion would be considered interference only because it conflicts with theirs; readers will recall that there was no such allegation against former UN Secretary General Kofi Annan when he cryptically, but supposedly flatteringly, claimed that Barbados punched above its weight in international fora.
It might have ever been thus. Chafed at criticism of the policy of racial segregation operative in Alabama some years ago, the then Governor George Wallace is reported to have said, “We shall continue to maintain segregation in Alabama completely and absolutely without violence or ill-will…We ask for patience and tolerance and make an earnest request that we be allowed to handle state and local affairs without outside interference…” The patent distinction here, of course, is that the Governor was far more gracious in his disagreement than the locals.
In any event, the accusation of external interference leveled at Mr. seems particularly misplaced given the context in which His Excellency spoke. As I have been urging for some time, the issue of state sovereignty should scarcely arise in a circumstance where the critical issue is compliance with the provisions of a voluntarily ratified international treaty, unless the accusers are prepared to argue that we possess the geopolitical clout to be international floutlaws of sacred global pacts. I am almost certain that this is not what Mr. Annan meant by “punching above our weight”.
When is a year nine months only?
I was intrigued by a report in the Barbados Advocate on Tuesday last week that Justice Errol Thomas of the Dominica High Court had called on prison authorities to stop what he called “the unlawful practice of reducing prison sentences without the authority of the court”. It may be widely known that the prison year is commonly thought of as a period of nine, instead of the calendar twelve, months.
In response to the assertion of the Superintendent of Prisons that “on arrival at the prison, the convicted person is given a one-third reduction to the sentence that is re-imposed only for misbehaviour during his time there”, the learned judge posited, “The only person authorized to reduce a sentence is the judge. No prison judge or officer has the right to reduce any sentence as soon as a prisoner enters the prison…it’s unlawful…that cannot be right…You are undermining the judgment of the court…” The Superintendent’s appeal to custom and practice –“it’s been happening for 31 years …if it’s a bad practice, it [has been] bad long time…” availed nothing. Thomas J reiterated his point about its unlawfulness.
I am not aware whether the matter has as yet been satisfactorily resolved in Dominica, but it is a nice point. I also do not know whether the identical position obtains there, but in Barbados the Prison Rules 1974, made under the Prisons Act, Cap 168, provides for the lawfulness of this procedure. According to rule 41, where relevant, “…arrangements shall be made by which a prisoner who is serving a sentence of imprisonment whether by one sentence or by consecutive sentences, for a period exceeding one month… may by good conduct and industry become eligible for discharge when a portion of his sentence not exceeding one-fourth of the whole sentence has yet to run…”
There would thus seem to be some lacunae in the popular thought. First, the sentence does not appear to be commuted, as the Dominican prison official claimed, “upon arrival at the prisons”, but rather it appears that a decision has to be made, at the time when at least three-quarters of the sentence has been served, as to whether the remaining period should be commuted or not. This is dependent upon “good conduct and industry” having been exhibited by the prisoner during his sojourn there.
Further, contrary to the view of the learned judge that it undermines the judgment of the court, it seems rather to be a matter of constitutional jurisdiction. While the court sentences the convicted person to a period on imprisonment; the prison authorities are empowered to determine the precise extent of that period. The current arrangement would appear to contemplate an inbuilt remission of sentence, although this is conditional on the prisoner’s good behaviour and industry.
Where a similar statute applies, and the sentencing court feels strongly enough about the issue, the necessary mathematical calculation will have to be effected by the judicial officer. Since one prison year may eventually be nine (9) months, then, in order to ensure a convicted person actually serves a total of five (5) years, the formally imposed sentence should be at least seven (7) years. Interesting!
Who is entitled to the Myrie benefits?
Recent reports about the substantial fiscal benefits realized by those regional jurisdictions that grant citizenship to foreign nationals (and their immediate families) who are prepared to invest handsome sums into their economies have caused me to wonder whether the decision to do so should not have been a collective CARICOM decision, given the legal implications for the other jurisdictions in that regional grouping that do not offer this entitlement on similar terms.
My musing is based on the fact that the Revised Treaty of Chaguaramas, at Article 32 (5), provides that “a person shall be regarded as a national of a Member State if such person (i) is a citizen of that State…”
And in its judgment in 2013 in the case brought by Shanique Myrie against Barbados, the Caribbean Court of Justice asserted that both the rights of establishment and of the provision of services “presume of necessity the right of movement of Community nationals without being obstructed by unreasonable restrictions” and that “an essential element of the right of free movement is the entry and stay of a Community national in another Member State hassle free, that is to say, without harassment or the imposition of impediments…” (My emphasis)
Since the economic citizen and his family would become citizens under the Revised Treaty, they should logically be entitled to those rights aforementioned on entry into any other Member State.
I note that Article 32 also provides that “the competent Organ shall establish basic criteria for Member States in order to safeguard against manipulation or abuse of such rights so as to gain an unfair advantage against other Member States…in the area of nationality criteria…” However, I have serious doubts as to whether this adequately covers the point that I am making here.
It would appear that by permitting or suffering certain states to create citizens through other than the ordinarily accepted means, the other CARICOM members may have unwittingly enlarged their treaty responsibilities in terms of entry of persons into their countries. Intriguing!
To you dear reader, a blessed, thoughtful, healthful and prosperous 2016.
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