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The Myrie ruling: Unearthing its deeper meaning

ANTHONY HYLTON

Sunday, October 20, 2013    

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THE Recent landmark ruling by the Caribbean Court of Justice (CCJ) in Shanique Myrie v Barbados will be studied and dissected for years to come in an attempt to plumb the depths of its true meaning and to discern its far-reaching implications.

Beyond providing some immediate financial and psychological relief to the plaintiff, Miss Myrie, the ruling adds significantly to the build-out of the jurisprudence in the new area of Community Law that will have legal practitioners, academics, administrators and policymakers engaged in a search to unearth the full reach and scope of the ruling.

When my partner and I took the decision to proceed with the case to the CCJ, we certainly recognised its potential to change the conversation regarding the direction of the Caribbean Community (Caricom) arrangement/project for the benefit of the people of Caricom and for wider corporate economic activities.

We certainly understood the financial implications for a small law firm as we were, but felt we had a responsibility to Miss Myrie and all the victims of arbitrary decisions by immigration officials throughout the region.

For my part, I felt the responsibility to those of us who, at whatever level, played a role in the creation of the Caricom institutions under the Revised Treaty of Chaguaramas (RTC). The ruling has not disappointed. Indeed, it should be hailed for its erudition, boldness and clarity. We are pleased.

The boldness of the decision is to be found in the Court's full embrace of the "direct effect" principle in community law, which holds that the decisions of the community organs, not least the Heads of Government Conference, will take precedence over national laws which are in conflict with these decisions.

Properly understood and applied, the effect of the ruling could change the debate among the critics of the Caricom project as to the best way to address the well-recognised implementation deficit. For, no longer can officials, ministers and Heads of Government take decisions at their appropriate levels in Caricom and simply walk away from those decisions once they return to their capitals.

The attempt by the Barbados Government to unilaterally change the 2007 Decision by Heads of Government to grant an automatic six-month stay in member countries by Caricom nationals was rejected by the Court, and Barbados was told to bring its laws into conformity with the Heads' decision.

Indeed, the Court ruled that appropriate decisions taken by Caricom organs did not require legislation at the national level as a basis for community level judicial action.

The Court also stepped in the breach left by the COTED and the Heads of Government Conference in their failure to fill out (by "secondary legislation") the supportive conditions implied in the creation of those five rights or freedoms enshrined in the Revised Treaty of Chaguaramas (RTC).

The Myrie ruling fleshed out the safeguards attendant on the right of entry and stipulated a right to an attorney, to speak to a consular officer and to call a family member as well as the delivery of a written decision where entry is denied to a Caricom national.

Here, the Court signalled its intention to be a progressive Court, at least in matters relating to the exercise of individual freedoms under the RTC. The Court is alive to the basic needs of Caricom nationals.

I confess that although we argued for punitive damages against the Barbados Government, given the egregious facts that the Court found in this case, I was not too disappointed with the Court's refusal to grant the remedy sought in our submission.

Here, the Court showed measure and maturity by recognising its limits and the sensitivities involved in a determination that the State of Barbados, represented here by a few errant officers, purposefully engaged in an act of discrimination against the national of another member state warranting punitive damages. This is especially so where, as here, Miss Myrie may still have a cause of action under Barbados' human rights and other related laws.

For me it is sufficient that the Court has, by its ruling, signalled its intention to play an active part in the interpretation and application of the RTC, in order to assist in giving meaning to the original intent of the framers of the RTC and thus give hope to the average person living and moving within the Community.

The prospects for both investors and business persons operating in the Single Market and Economy (CSME) are even more encouraging after this ruling.

More than anything, however, I am pleased to be associated with this landmark ruling which vindicates the tireless efforts on the part of the many advocates of Caricom integration who continue to believe in the capacity of institutions like the CCJ to deliver a quality of life for its people and the prospects for sustainable economic growth and development within the community.

I dedicate this ruling to the efforts of Caricom nationals, some of whom are still with us and who have kept the faith and continued to believe that Caricom remains the best vehicle for ensuring our collective best future in a rapidly globalising world.

Here, I mention persons such as former Prime Minister PJ Patterson, Sir Shridath Ramphal, Sir Kenneth Hall and Alistair McIntyre. It is truly a Time for Action.

— Anthony Hylton is the minister of industry, investment and commerce. He was formerly the managing partner of Hylton Brown Law Firm which represented Shanique Myrie in her case against the Barbados Government

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