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-
- (a) persons engaged in armed operations against the Barbados Defence Force or any force co-operating therewith, and
- (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.