From childhoot I was an avid reader and the more I read the more I realize how little I know.
After reading the judgment of the Caribbean Court of Justice (CCJ) in the Shanique Myrie case, I am left completely confused and it is causing me to “unlearn” things that I accepted as given. For example, Section 48 (1) of the Barbados Constitution states: “Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good governance of Barbados.”
I have to unlearn section 48 (1) because the CCJ’s ruling suggests to me that something called the Heads of Government Conference of CARICOM can make decisions that overrule laws that were made in our sovereign Parliament. As far as I am aware, decisions about the free movement of CARICOM nationals have not been made by our Parliament, and it has not delegated power to make law that would bind this country to any Heads of Government Conference. And, in any event, if Parliament had done so, where is the evidence that these binding laws were ever published in the Official Gazette, so that the population would have notice of them?
After reading through the judgment twice, I am very conflicted and I feel that the whole scenario has emasculated Barbados. Our published laws have been overturned by what the CCJ calls Caribbean Community Law. This is a new concept to me and it suggests that Barbados is a province in some super federal state called the Caribbean Community.
When the CCJ was being proposed, I well remember the proponents told us that the court would have an appellate jurisdiction that would replace the Privy Council as our final court of appeal; and an original jurisdiction that would interpret the Revised Treaty Of Chaguaramas. And in its original jurisdiction, the court would decide cases that arose out of breaches of the treaty since there was no other court that was competent to hear those matters.
I now find it strange that the CCJ could have heard the Myrie case when there are courts in Barbados that are competent to hear the matters that she complained of. I am firmly of the view that the CCJ had to strain to assert its jurisdiction in the case.
Ms Myrie claimed a right to free movement within the Caribbean Community and that the treatment to which she was subjected amounted to a serious violation of that right. Additionally, she alleged that she was forced to endure a humiliating body cavity search which she characterized as an assault and a rape.
Finally, she charged that she was singled out and treated in the way she was because of her Jamaican nationality. The CCJ found that her Jamaican nationality was not the reason that she was denied entry, and I would submit that that was the only matter that could not have been tried in a local court.
As I understand it, Ms Myrie was granted a visa to enter Barbados by an Immigration officer, who had power to do so in accordance with Section 13 (2) of the Immigration Act. To all intents and purposes, she had legally entered this country. The evidence revealed – and the CCJ accepted – that thereafter her visa was cancelled by an Immigration officer, and she was detained and put back on a flight to her homeland the following day. Interestingly, the Immigration Act does not confer the power to revoke a visa on any Immigration officer. That power resides with the minister who holds responsibility for immigration, in accordance with Section 13 (5) of the Immigration Act, which states: “The minister may at any time
(a) modify or cancel any condition specified in;
(b) vary the period specified in; or
(c) revoke a permit issued under subsection
(2) “Ms Myrie, therefore, had a case for a judicial review under the Administrative Justice Act, Chapter 109B of the Laws Of Barbados since it would appear that the person who cancelled the visa had no authority to do so. Section 3 (1) of the act states: “An application to the court for relief against an administrative act or omission may be made by way of an application for judicial review in accordance with this act and with rules of court.
Further, Section 4 sets out the grounds for relief. It states: “The grounds upon which the court may grant relief by way of remedies mentioned in this act include the following:
(a) that an administrative act or omission was in any way unauthorized by law;
(b) excess of jurisdiction;
(c) failure to satisfy or observe conditions or procedure required by law;
(d) breach of the principles of natural justice;
(e) unreasonable or irregular or improper exercise of discretion;
(f) abuse of power;
(g) fraud, bad faith, improper purposes or irrelevant considerations;
(h) acting on instructions from an unauthorized person;
(i) conflict with policy of an act of Parliament;
(j) error of law, whether or not apparent on the face of the record;
(k) absence of evidence on which a finding or assumption of fact could reasonably be based; and
(l) breach or omission to perform a duty.
With Ms Myrie having complained of a criminal assault and other administrative breaches, the CCJ should have said to her that there were courts in Barbados that were competent to hear her case and declined jurisdiction.
I am of the view that if Ms Myrie’s story is to believed, she got justice but from the wrong court.
• Caswell Franklyn is a trade unionist and social commentator.
