ON October 4, the Caribbean Court of Justice (CCJ) handed down its ruling in the case of Ms Shanique Myrie against the Government of Barbados for being denied entry, being physically abused, and deported to Jamaica in March 2011.
Ms Myrie sued the Government of Barbados and was awarded BD$77,240 and the refund of her medical expenses, airline ticket and reasonable legal expenses. The decision demonstrates that the CCJ, even in its infancy, can help to protect the rights of citizens of Caricom countries.
This outcome is a far more effective form of redress than the usual diplomatic protest which follows abuse of authority by immigration officers of their Caricom brothers and sisters. It is also a shot across the bow of governments that tolerate this type of outrageous conduct.
In rendering its judgement, the CCJ held that "Caricom nationals are entitled to enter Caricom member states, without harassment or the imposition of impediment, and to stay for up to six months." This right, the Court stated, was derived from the Revised Treaty of Chaguaramas (RTC) nd a 2007 decision made at the 28th meeting of the Conference of Heads of Government of Caricom.
Some are interpreting the CCJ's ruling to mean that decisions made by the Heads of Government are binding on member states, without the requirement that it be enacted into their domestic law. They suggest that the decision means that Caricom law takes precedence over national law. This is not entirely clear.
It is important to read paragraph 54 of the judgement which states: "Article 240(1) RTC does not require that member states enact a binding community decision into domestic law in order to create at the community level legally binding rights and obligations. The states are merely required to give domestic effect to such a decision, subject to their own relevant constitutional procedures. If these constitutional procedures require domestic legislation, then the state's legislature must be involved in order to give municipal courts the authority to adjudicate those rights and obligations at the municipal level. But in lieu of enacting new or amending old legislation, this objective may, in some cases, also be accomplished administratively or even judicially in cases where the constitution or the existing domestic legislation leaves room for so doing."
The paragraph concludes by stating: "However, there is no guarantee that member states of the Caribbean Community will obey this ruling, especially those that have not accepted the Caribbean Court of Justice as their court of ultimate jurisprudence."
This ambiguity of the CCJ's interpretation with caveat derives from the very Article 240.1 of the treaty, which states: "Decisions of competent organs taken under this treaty shall be subject to the relevant constitutional procedures of the member states before creating legally binding rights and obligations for nationals of such states."
We await opinions from those with legal expertise as to the applicability of the ruling to countries that are not members of the CCJ.
If the implication of the ruling is that Caricom community law overrules national laws it may stir up the entrenched phobia pandemic in the region of ceding even a modicum of sovereignty to the integration movement.
Unfortunately, this would reinforce and even further discourage those governments that have not yet joined the CCJ, while opponents of the CCJ are likely to seize on this to fan nationalistic xenophobia.