Shanique Myrie v State of Barbados [Caribbean Court of Justice]

• Jurisdiction: Jamaica
• Judge: D Byron,R Nelson,A Saunders,D Bernard,J Wit,D Hayton,W Anderson
• Judgment Date: 04 October 2013
• Neutral Citation: [2013] CCJ 3 OJ
• Docket Number: CCJ Application No. OA 002 of 2012
• Court: Supreme Court (Jamaica)
• Date: 04 October 2013

[2013] CCJ 3 (OJ)

ADVANCE COPY

IN THE CARIBBEAN COURT OF JUSTICE

Original Jurisdiction

THE COURT

composed of D Byron, President, R Nelson, A Saunders, D Bernard, J Wit, D Hayton and W Anderson, Judges having regard to the originating application filed at the Court on the 17 ^th day of May 2012, the Defence filed on the 11 ^th day of July 2012, the judgment of the Court of 26 ^th October 2012 allowing the State of Jamaica to intervene in the proceedings and inviting Member States to make submissions on the issues in dispute, the preliminary case management conference held on the 22 ^nd day of November 2012, the case management conference held on the 12 ^th day of December 2012, the written submissions filed on behalf of the Defendant on the 9th day of January 2013, the written submissions filed on behalf of the Intervener on the 29 ^th day of January 2013, the pre-hearing reviews held on the 7 ^th day of February 2013 and the 22 ^nd day of February 2013, the case management conference held in Jamaica on the 4 ^th day of March 2013, the public hearings held on the 4 ^th , 5 ^th , 6 ^th days of March 2013 in Jamaica, the case management conference held on the 26 ^th day of March 2013, the visit to the Grantley Adams International Airport, Barbados by the President and Judges of the Court on the 16 ^th day of March 2013, the public hearings held on the 18 ^th , 19 ^th , 20 ^th , 21 ^st days of March 2013 in Barbados, the supplementary written submissions filed on behalf of the Claimant and of the Defendant both filed on the 4 ^th day of April 2013, and the public hearings held on the 8 ^th and 9 ^th days of April 2013 at the Seat of the Court and after considering the written submissions and oral observations of:

CCJ Application No. OA 002 of 2012

Between

Shanique Myrie

Claimant

and

The State of Barbados

Defendant

and

The State of Jamaica

Intervener

the Claimant , by Ms Michelle Brown and Ms Nancy Anderson , Attorneys-at-law

the Defendant , by Mr Roger Forde , QC appearing together with Mr Patterson Cheltenham QC, Ms Donna Brathwaite , QC, Dr David Berry and Ms Nargis Hardyal , Attorneys-at-law

the Intervener , by Dr Kathy-Ann Brown and Ms Lisa White appearing with Mr O'Neil Francis , Attorneys-at-law

the Community , by Ms Safiya Ali , Ms Gladys Young and Dr Chantal Ononaiwu , Attorneys-at-law

HUMAN RIGHTS - Free movement of nationals within the Caribbean Community - Non-discrimination doctrine - Human rights consideration - Denial of entry into Barbados - Whether denial of entry and treatment violated her right to free movement - Whether body cavity search amounted to an assault - Whether she was awarded less favourabe treatment - Revised Treaty of Chaguaramas, Articles 7 and 8

Introduction

1 This case deals with important issues of Caribbean Community law which have not previously been addressed by this Court. The most prominent among them is whether and to what extent CARICOM (or Community) nationals have a right of free movement within the Caribbean Community. The case also raises other aspects of Caribbean Community law which are of very significant doctrinal and practical relevance. First and foremost, however, this is a case about a young Jamaican woman who one day left her country, for the very first time, in order to travel to another Caribbean country and, having arrived there, found herself in a situation from which, several months later, according to Jamaican medical practitioners, she was still suffering post-traumatic stress.

2 On 14 March 2011, the Claimant, Ms Shanique Myrie, then 22 years old, arrived at the Grantley Adams International Airport (the ‘GAIA’) in Barbados. Far from being welcomed, she was denied entry. According to her testimony she was never told why. She claims that in the process she was subjected to insults based on her nationality and to an unlawful body cavity search in demeaning and unsanitary conditions. Her luggage was also searched but none of these searches revealed any contraband substances. Ultimately, Ms Myrie was not allowed to enter Barbados and was instead detained overnight in a cell at the airport and deported to Jamaica the next day.

3 Ms Myrie instituted these proceedings against the State of Barbados, the Defendant. She claims a right to free movement within the Caribbean Community. She also claims that the treatment to which she was subjected by border officials in Barbados amounts to a serious violation of this right. She characterises the body cavity search as an assault, a rape, of such a serious character that it constitutes a violation of her fundamental human rights and freedoms for which the State of Barbados must be held accountable. Ms Myrie further submits that she was singled out and treated in the way that she was because of her Jamaican nationality and that the treatment meted out to her was less favourable than treatment reserved for nationals of other States. For this reason she accuses Barbados of violating her rights under Articles 7 and 8 of the Revised Treaty of Chaguaramas (‘RTC’) to non-discrimination on the ground of nationality only and to treatment that is no less favourable than that accorded to nationals of other CARICOM States or third States. On this basis she has requested the Court to issue a number of Declarations and Orders against Barbados including an order to pay damages, both special and punitive, and an order for the recovery of all her legal costs. In this, Ms Myrie has been joined by the State of Jamaica, which the Court earlier granted the status of Intervener. Counsel for Jamaica supported Ms Myrie's submissions.

4 Ms Myrie submits that her right to free movement in the Community, more specifically her right to enter Barbados without any form of harassment, is based on Article 45 RTC and a Decision of the Conference of Heads of Government of the Caribbean Community taken at their Twenty-Eighth Meeting (‘the 2007 Conference Decision’).

5 The State of Barbados denies Ms Myrie's claims. Barbados accepts that Ms Myrie was refused entry, detained overnight and deported the morning after her arrival. Barbados disputes, however, many of the factual submissions underlying the claims made. It denies that she was subjected to a body cavity search or other improper treatment by any of its border officials. It further denies that Ms Myrie was treated badly or unfavourably or that she was denied entry into Barbados because she was a Jamaican national. It submits that Ms Myrie, when interviewed by immigration officers, had been untruthful about the person who she said would host her in Barbados and that it was for this and no other reason she was denied entry. This refusal was, in the view of Barbados, justified because its Immigration Act requires foreigners to answer the questions of immigration officers truthfully. Barbados also submits that Ms Myrie was told that this was the reason for refusing her entry and that her detention overnight was in accordance with the laws of Barbados.

6 The State of Barbados also makes the following submissions:

• 1. the 2007 Conference Decision cannot be a proper basis for the conferment of a right to free movement because it was merely an agreement and not a decision within the meaning of Article 28 RTC;

• 2. if the 2007 Conference Decision is found to be a decision, it does not create any legally binding rights because such a decision requires unanimity whereas Antigua and Barbuda had entered a ‘reservation’ in connection with the Decision and, in any event, the Decision has not been subjected to Barbados' constitutional procedures as required under Article 240 RTC;

• 3. if a right of free movement has been created by the Decision, any denial of that right or allegedly wrongful treatment by the Barbados border officials of those seeking to enforce that right cannot be judicially reviewed under the RTC as the exercise of immigration and customs procedures would constitute ‘activities’ that, in keeping with Article 30(2) RTC, are excluded from the operation of Chapter Three RTC (Articles 30–50) which is the Chapter that contains a reference to the free movement of Community nationals;

• 4. if the Court concludes that the 2007 Conference Decision created a right of entry for Community nationals, such a right is not absolute or without any restrictions as the Decision itself acknowledges ‘the rights of Member States to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds’;

• 5. there was no violation of Article 7 RTC (the non-discrimination Article) as Ms Myrie was not discriminated against let alone discriminated against on the basis of her nationality as alleged;

• 6. there was no violation of Article 8 RTC (the most favoured nation Article) as this was not a case where a national of a Member State was treated less favourably than nationals of other CARICOM States or third States.

Jurisdiction

7 In adjudicating these issues the Court must first satisfy itself of its jurisdiction. This process commenced as early as 18 April 2012 at the Special Leave hearing when the parties accepted, and the Court confirmed, that Ms Myrie should have special leave to appear as a party before it in these proceedings. By the grant of Special Leave the Court thereby established that (a) Ms Myrie was a national of Jamaica, thus a Community national and, therefore, a ‘person of a Contracting Party’ and (b) it was arguable that (i) by or under the RTC a right had been conferred on Community nationals to enter any Member State without harassment; (ii) this was a right intended to enure to the benefit of such persons directly, and (iii) Ms Myrie had been prejudiced in respect of the enjoyment of that right. The grant of Special Leave also signified that the Court had established that Jamaica, although entitled to espouse Ms Myrie's...