The Jeff Cumberbatch Column – Free Movement and the CARICOM National

A few weeks ago, I conjectured in this space as to who precisely could be “the enemy” in a charge levelled against a member of one branch of the local Defence Force for communicating with the enemy. I wrote then, “I am almost certain that there may be such an offence, but I am still in wonder as to who or what constitutes an enemy of Barbados and why and what would a soldier be communicating with and to such an entity. There has been no further clarification up to the time of writing this. Are we no longer “friends of all, satellites of none” as we so proudly boasted on attaining sovereign statehood in 1966?”

The court martial began last week and is still sub judice, thus constraining any detailed comment thereon from this quarter. However, I discovered that there is indeed a statutory definition of what comprises the enemy and that in this matter the enemy is reputed to be an either alleged or well-known drug trafficker, according to newspaper reports. The statutory definition is to be found in the interpretation section of the Defence Act, Cap 159, that provides as follows-

enemy” includes

  1. (a)  persons engaged in armed operations against the Barbados Defence Force or any force co-operating therewith, and
  2. (b)  armed mutineers, armed rebels, armed rioters and pirates…”

Indeed, the Defence Act itself, I have discovered, makes for quite interesting reading, providing in section 35 for a sentence of death upon conviction by a court martial of the offence of aiding the enemy; and imprisonment for such military offences as cowardice (s. 37); what I choose to call the utterance of discouraging words (s. 38); and becoming a prisoner of war through disobedience or wilful neglect, and failure to rejoin forces (s. 39). Indeed, for its singularity, the text of section 39 (2) merits reproduction-

Any person who, being subject to military law under this Act, having been captured by the enemy, fails to take, or prevents or discourages any other person being subject to service law who has been captured by the enemy from taking, any reasonable steps available to him or that other person, as the case may be, to rejoin the Barbados Defence Force or any force co-operating therewith, is guilty of an offence.

But I digress. Today, I want to comment on the guidance provided by the Caribbean Court of Justice [CCJ] in its original jurisdiction in two recent decisions as to the entitlement to and the nature and extent of the freedom of movement of CARICOM nationals within the region

It may be recalled that in Shanique Myrie v Barbados in 2013, the CCJ had determined that there had been created on the Member States to the Treaty “a binding obligation to allow all CARICOM nationals hassle-free entry and an automatic stay of six months upon arrival into their respective territories subject only to two exceptions: the right of Member States to refuse entry to ‘undesirable persons’ and their right ‘to prevent persons from becoming a charge on public funds’.”

In the recent matter of Tamika Gilbert et al. v Barbados, it was suggested that this freedom had been infringed by Barbados when on an allegation by a Bridgetown store owner, the two claimants were taken into custody and, according to their evidence, subjected to “humiliating and degrading” strip searches by the police.

The Court, which possesses exclusive jurisdiction over the interpretation of the constituent Revised Treaty of Chaguaramas [RTOC], held that freedom of movement under the RTOC does not immunize CARICOM nationals from the operation of law enforcement agencies in the receiving State and, in the absence of any claim that they had been discriminated against by virtue of their nationality in that they were subjected to treatment that is worse or less favourable than is accorded to a person similarly situated, (except for the fact that he or she is of a different nationality), they could not establish an infringement of their Treaty right of freedom of movement. As I have commented elsewhere, though it may be argued by some that some discrimination on the basis of nationality might have emanated from the store-owner(would a local have been similarly accused?), the discrimination needs to be effected on the part of the state or its official agencies and not merely by its nationals.

And last week, in Bain v Trinidad & Tobago, the CCJ had cause to opine on what constitutes sufficient proof of entitlement to the treaty rights of a Caribbean national. Here, Mr Bain, an alleged Grenadian national, claimed that he was denied his freedom of movement under the Revised Treaty by the Trinidad & Tobago authorities when the immigration officials refused him entry and sent him back to Grenada on an early flight.

As evidence of his citizenship, Mr. Bain had produced his Grenadian driver’s licence, which stated that he was a Grenadian citizen. He also showed his Grenadian voter’s identification card that stated that he was born in Grenada. In addition, his USA passport also listed Grenada as his country of birth. These documents, Mr. Bain argued, should be enough to invoke his right of freedom of movement, as explained by the CCJ in Shanique Myrie v Barbados.

In its judgment, the Court determined that, while there was no doubt that Mr. Bain is a Grenadian citizen, he did not present sufficient documentation to prove it to the immigration officers. The presentation of the Grenadian driver’s licence and voter’s identification card was not sufficient. Unlike the Grenadian passport, neither document was meant to serve as evidence of citizenship. In addition, they were neither machine- readable nor designed to be stamped by immigration officials.

The Court also rejected the argument that the notation in Mr Bain’s US passport that he was born in Grenada, conclusively proved citizenship. It was noted that it was possible that Mr. Bain could have renounced his citizenship, or have it stripped away by the Grenadian government, while mere birth in a country does not always automatically evidence citizenship.

It is difficult to fault the judgment of the Court in this case. There is no disputing the fact that the best evidence of CARICOM nationality and thus entitlement to the Treaty freedom of movement regionally is that the applicant is the holder of either (i)  a passport and who was born in the state issuing the passport or in another qualifying Caribbean Community state; or (ii)  some other form of identification issued by the state of his birth or by another qualifying Caribbean Community state of which he is a national, as expressed in the local legislation pertaining to the movement of skilled nationals.

In addition, the CCJ heard submissions from the Caribbean Community that the “appropriate travel document to invoke the right of freedom of movement is the CARICOM passport or a passport issued by a CARICOM Member State”. My only quibble is with the Court’s raising of the “possible” as opposed to “probable” events that could have occurred to cost him his Grenadian citizenship and while I agree that mere birth in a country does not always automatically evidence citizenship, there was no allegation that this was not the case in Grenada.

Yet, one is compelled by force of reasoning to agree with the judgment that “the function of an immigration officer is to be a gate-keeper, taking only a short time to open the gate to those who clearly qualify to be admitted, and not to be a private detective involved, at the expense of himself or his employer, in investigations of law and fact to determine whether or not there is some reason that can or cannot be found to help the potential entrant justify being admitted through the gate, and that it is up to the entrant, who is in the best position to resolve matters, to help himself.

 

21 comments

  • ‘Halfway win’
    Article by
    Barbados Today
    Published on
    June 1, 2019

    Coast Guard Lieutenant David Harewood has been vindicated on two of the four charges brought against him.

    A five-member tribunal, headed by president Lieutenant Colonel Rohan Johnson, today upheld a no-case submission brought by defence counsel Vincent Watson on the charges related to “communicating with the enemy”.

    However, Watson’s attempt to have all four charges dismissed proved futile, as the tribunal ruled there was sufficient evidence for him to stand trial on the other two matters.

    After deliberating for just over two hours today at the Barbados Defence Force’s (BDF) St Ann’s Fort headquarters, on the advice of judge advocate Neville Watson, the tribunal found Harewood not guilty of knowingly communicating with Akem Waithe, alias ‘Ellis’, without lawful authority, while using a cellular phone belonging to the BDF between August 7 and 10, 2018.

    The panel also found the senior coast guard official not guilty of the charge that he communicated with a well-known drug trafficker on an unknown date in January 2018.

    But the Tribunal ruled the accused would have to face the charges that he on an unknown date in January 2018, being a commissioned officer in the BDF, having knowledge of a threat to the life of a junior member, neglected to inform his superiors of such a threat, as well as that he conducted unauthorised information gathering operations, conduct unbecoming of a commissioned officer in the BDF.

    The defence counsel had earlier advanced arguments on why all the charges against his client should be dismissed.

    He argued the prosecution had not proven its case as there was no evidence a crime had been committed.

    The defence counsel also suggested that statements by the prosecution’s principal witnesses Major Junior Browne and Warrant Officer Christopher Blenman differed and could therefore not both be the truth.

    He asked the tribunal to reject the evidence given by both officers.

    The veteran lawyer contended the prosecution had not proved his client had communicated with the enemy.

    He explained that in the Defence Act, the term “enemy” was defined as groups of armed persons.

    The defence counsel further charged that the prosecution had not proved his client had communicated with any well-known drug dealer.

    As it related to the charges dealing with the accused’s conduct, the counsel said the law was “sketchy at best” with respect to good order and discipline.

    He said there was a lack of good explanation by the law.

    The defence counsel also questioned why the prosecution did not call the accused’s commanding officer to give evidence that those actions had brought the BDF into disrepute.

    He insisted that the prosecution had not proved the accused knew of a personal threat to ordinary seaman Marlon Scott and had failed to report it to his superiors.

    Watson further maintained that none of the witnesses called by the prosecution had produced any evidence to suggest the accused had gathered unauthorised information around Barbados.

    On these grounds he asked the tribunal to dismiss all of the charges.

    However, prosecutor Lieutenant Jamar Bourne told the tribunal he merely had to show he had established a prima facie case.

    He said he had done so and there was enough evidence for the case to continue.

    Bourne said there was enough evidence from WhatsApp messages involving the accused’s cellular phone to prove he had communicated with the enemy.

    The Lieutenant said evidence provided by Major Browne and Warrant Officer Blenman had shown the accused knew of a threat against a junior officer and had failed to report it.

    He said the accused had “intentionally neglected to report the threat”.

    Bourne explained that the BDF should have been made aware so it could carry out its own investigations.

    Following a 22-minute break, the judge advocate said after listening to both sides’ “high standard submissions”, he would advise that the first two charges be withdrawn, while the accused should be made to answer the remaining two charges.

    He explained he was in full agreement with the defence as it related to the definition of the term “enemy” and that Akem Waithe did not fit that description.

    The judge advocate also agreed that the prosecution did not prove the accused had communicated with a well-known drug trafficker.

    The court martial continues on Monday when Harewood is expected to take the stand in his defence.

    The defence attorneys also indicated he would call one other witness in retired Major Wendy Yearwood.
    randybennett@barbadostoday.bb

    Like

  • We wonder if the actions of the GoB would be considered as ‘aiding the enemy’ and at the same time violating treaty terms relating free movement.

    This is a matter we’ve raised previously.

    Currently, the GoB is aiding a hostile state in the recruitment of terrorists from and throughout the region to form proxy armies to overthrow other sovereign states.

    The GoB is so doing under a foreign funded ‘project’ which pretends to about the control of the movement of certain persons through the region but in reality it serves the above stated illegal war purpose.

    This issue connects to the two basis points made in the above article.

    Like

  • Caswell Franklyn

    To my mind, theTamika Gilbert v Barbados case shows that the Myrie case was wrongly decided. If you believe Myrie’s evidence, she was admitted to Barbados by an immigration officer. While she was in Customs she was taken into custody by a policeman and assaulted. At that stage only, the Minister with responsibility fo Immigration could have ordered her out of the country to my certain knowledge as a former immigration officer.

    Her case had nothing to do with free movement.

    Like

  • Anyhoo..it must fall apart, the negros in parliament and bar association are TOO EVIL THEMMSELVES….and it gets worse, much, much worse for the demons..lol, it’s all coming apart.

    This is what happens when the two groups of house negros from DBLP REFUSES TO REMOVE THE THE EVIL SLAVE LAWS THAT MAKES THEM RICH WITH BRIBES FROM RACIST CRIMINALS..

    A pity CCC did not see it necessary to remove the SAME SLAVE LAWS when he had the opportunity, instead of using them to also LINE HIS POCKETS TOO.

    “CARSON C. CADOGAN
    It is very good news that the charges based on the 108 year old British Antiquated SLAVE LAW have been dismissed. It is rather untenable that the BLACK High command of the Barbados Defence Force chose to charge A BLACK PERSON IN BARBADOS with a Slave Law.

    This simply shows the whole World how far BLACK BARBADIANS still have to go in order to gain respect in Barbados.

    Why was it was necessary to have a Jamaican presiding over the fate of a BLACK BARBADIAN???

    Will this happen as well when CHARLES HERBERT HAS HIS DAY IN COURT???”

    Like

  • There is one point that needs further clarification.

    Shouldn’t a valid US passport gain him admittance to T&T. Why wasn’t it accepted?

    What is missing from the story as related above.

    Like

  • Wuhloss!!..

    will the shite media try to cover it up, nation government pimp newspaper, don’t be surprised….cause the tiefing swines of parliament know exactly what they did and will not want others to find out..

    Apes Hill golf course to shut down, bankruptcy and an evil greedy tiefing racist family…wuhloss.

    KARMA and RETRIBUTION WALKING HAND IN HAND…

    Like

  • The Court also rejected the argument that the notation in Mr Bain’s US passport that he was born in Grenada, conclusively proved citizenship. It was noted that it was possible that Mr. Bain could have renounced his citizenship, or have it stripped away by the Grenadian government, while mere birth in a country does not always automatically evidence citizenship.
    +++++++++++
    Sometimes the law get close to proving that “the law is an ass”. We accept that a passport is an inviolable document yet the Court seemed to be searching for a reason to uphold the actions of the immigration Officials by questioning the accuracy of the information contained in the Passport.

    That ruling puts my Bajan identity into question as I have a non- machine readable Barbados identification card thus when I join the Caricom line at the Airport the Immigration Officer could dispatch me to the other line as the only supporting evidence is the country of birth notation in my Passport (does a Bank card issued by a Bank in Barbados count?)

    Recently I visited a sister Caricom nation direct from a Non Caricom country and escaped the long Immigration line up by joining the Caricom queue, the Immigration Officer accepted the info in the Non Caricom Passport without question and accorded me six months residence, next time I visit Barbados I may not be so lucky.

    Like

  • As far as i know, the lawyer defending the accused is one of the lawyers known to be upright and upstanding in Barbados….so like him, i want to know why this lieutenant was even charged..

    “The veteran lawyer contended the prosecution had not proved his client had communicated with the enemy.

    He explained that in the Defence Act, the term “enemy” was defined as groups of armed persons.”

    me thinks the 5 drug dealers that it was said were VIP IN PARLIAMENT and loudly PRESENT AT Mia’s swearing in …can be labelled as ARMED PERSONS…no???

    Pacha…wuh ya tink??

    GoB is playing a very nasty game, one that they will never win.

    Like

  • WARU

    Apes Hill golf course to shut down, bankruptcy and an evil greedy tiefing racist family…wuhloss.
    xxxxxxxxxxxxxxxx

    ????????

    Like

  • Before commenting on the question of identity, let me say that when the Defence Force first announced that an officer was charged with communicating with the enemy, I at first thought someone had been in touch with the Russians, Chinese, Venezuelans, Cubans or even the American, Brits or Canadians.
    Then to hear it was an officer suspected of communicating with an alleged law breaker, I could not stop laughing. Only in Barbados can this nonsense pass the punching above your weight test. Was it only theatre? Watch out for the use of lie detectors in all kinds of government (and commercial) business.
    If as alleged, this is a suspicion of criminality then it is a job for the civil authorities. Then when the evidence came out: someone seconded to the RSS (that militarising of civilian policing again. I have warned you) playing around with mickey mouse technology.
    About proof of identity: sometime ago I went in to the new Registry to get some certificates (birth, marriage, death, etc). I put the application, and paid for them. When I went to collect them I was asked for proof of identity and produced my Barbados passport. I was asked by the young lady if I had an ID card and said no, I asked if they were compulsory.
    He declined at first to accept my passport – a document recognised internationally as proof of identity, but apparently, not at the Registry in Barbados. She called over her boss, a short mature guy, who hesitated at first, before agreeing my passport was good enough.
    Funny thing, it was around the rime a Jamaican guy was jailed for forging his Barbadian identity, and was found by police with numerous ID cards in his possession.

    Liked by 1 person

  • Jeff Cumberbacth

    There is one point that needs further clarification

    Shouldn’t a valid US passport gain him admittance to T&T. Why wasn’t it accepted?

    What is missing from the story as related above.

    @ Theo,

    Prior to the arrival of the flight, officials at the Piarco Immigration Office had been formally provided with information relating to drug offences being detected against the name of a man called David Bain on the Advanced Passenger Information System. The notice was given by the Joint Regional Communications Centre, a sub-agency of the CARICOM Implementation Agency for Crime and Security, as such a person was on the International Watch List System. After interviewing the Claimant, despite his strenuous denials as to any drugs convictions, an immigration officer issued him with a Rejection Order. The Claimant was informed of his right of appeal but chose not to exercise it, leaving Trinidad and Tobago a few hours later on the scheduled 5.45am LIAT flight LI1308 on Friday, 15 December 2017.

    Liked by 1 person

  • “xxxxxxxxxxxxxxxx

    ????????”

    Waiting yo see if the government, can u say self interest.. and the joke media try to cover the Apes Hills bankruptcy up.

    Early days yet.

    Like

  • Ah take it yardfowls did not know, well, they never know anything anyway, they just cackle meaninglessly , empty vessels are what they are…

    …. What people SHOULD want to know is, what about the NIS Pension fund’s $300,000 dollars they tief and gave to wicked Cow..pensioners’s money, while pensioners starve….and while Apes Hill goes through bankruptcy and change of management.

    If they think they hiding this…

    Like

  • SHOULD READ:

    What people SHOULD want to know is, what about the NIS Pension fund’s $300 MILLION dollars they tief and gave to wicked Cow…

    surprised yardfowl did not jump out to tell me ah made a mistake with the dollar amount…but me thinks, no one wants to touch this one at all…lol

    Like

  • WURA
    Looking for that news,,, not seeing it… In fact, seeing the opposite.
    https://barbadostoday.bb/2016/11/11/apes-hill-club-already-paying-off-says-cow/

    Like

  • Theo…they are lying.

    They cannot get away from their lies…ask Apes Hill workers if they have not been all let go, including management.

    Cow is not only a thief…but a liar.

    Can’t fool Republic Bank though…

    And the government is trying to keep the news off the radar…but that won’t help either, that is why the government cannot be trusted.

    …. pensioners money is invested in that hole, hundreds of millions…. president Mia needs to tell Black Bajans what is going to happen to their money…and how many lowlife ministers invested in a racist enclave against their own people.

    Like

  • For the curious who will ask. I am the one put the information out there.

    Like

  • @ the Luminary Jeff Cumberbatch.

    de ole man has a question for you.

    You said and I quote

    “…The Court also rejected the argument that the notation in Mr Bain’s US passport that he was born in Grenada, conclusively proved citizenship.

    It was noted that it was possible that Mr. Bain could have renounced his citizenship, or have it stripped away by the Grenadian government, while mere birth in a country does not always automatically evidence citizenship…”

    It would seem to me that this is a most silly construct but i would as you to clarify this for me.

    “…Mr Bain could have renounced his citizenship…”

    Entertain de ole man for a few moments with my patented stupidity,

    Say that Bain is a Grenadian citizen living in Grenada,

    Bain buys a ticket for Barbados prior to leaving Grenada he files the requisite documentation renouncing his citizenship and has FEDEX deliver them to the Authorities in Grenada

    Bain then leaves Grenada and arrives in Barbados.

    When the authorities question Bain, the Bain in my hypothetical example indicaes that he has renounced his citizenship.

    Where will the Barbdian authorities send Bain?

    He cannot be sent back to Grenada since he is not a citizen there? or is he?

    I know that you are knowledgeable about these things so de ole man can send you these items of drivel which arise from your own prosecution of these topics

    Thanking you in advance

    Like

  • Piece the Legend

    @ The Luminary Jeff Cumberbatch

    I was hoping that you might have returned to your article and answered de old man.

    Replace Bain’s name with that of Pornville Inniss and then discuss, for 10 points, what predicament that might present (1) before deportation or (2) after sentencing

    Like

  • Jeff Cumberbacth

    I was hoping that you might have returned to your article and answered de old man.

    Replace Bain’s name with that of Pornville Inniss and then discuss, for 10 points, what predicament that might present (1) before deportation or (2) after sentencing

    @PTL, Not much time for BU these days,alas. My answer to your initial question is that I do not believe that renunciation of citizenship automatically destroys the right to permanent residence in a jurisdiction. In that case, Grenada will still be the place with which Bain has his closest and most substantial connection.

    Unfortunately, I do not fully understand the query as it pertains to Mr Inniss.

    Like

  • Piece the Legend

    @ the Luminary Jeff Cumberbatch,

    My second query about Mr Inniss sought to explore his post trial options

    Donville was fingered for his fall in the United States.

    He has the following issues to think of.

    I1. His Hopes and aspirations for Prime Minister are shattered

    I2. His hope to RETURN and serve as an MP is a dream.

    I3. America does not arrest former Ministers UNLESS the evidence ghry have is bulletproof.

    I4. Donville going have to give up someone or multiple people to save himself.

    I5. He is a bajan who would be a defendant in a serious matter in the US and even if he gives up other people to save himself, he can come back there in those circumstances because it will mean ***

    I6. The US may, even after he has turned state’s witness, still deport him.

    I7. So either he is able to beat the charges WHICH HE CANT or he “beats” the charges with a plea bargain and he will be in a really bad position after snitching

    So I really was asking for Donville and working out what his options were

    Like

Join in the discussion, you never know how expressing your view may make a difference.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s