When the allegation that she was subjected to a humiliating and painful body cavity search was first made by Shanique Myrie in early 2011, I discussed the issue of body cavity searches in this column in the context of searches at the border, specifically with reference to the domestic law as applied in the United States and Canada.
In one of my articles I stated: “The issue of searches at the border involves the balancing of the individual’s right to privacy and the state’s interest in controlling who or what crosses the border. Specifically, the state is concerned to prohibit the entry of illegal drugs and contraband generally as well as persons who have no legal right to enter the country.”
Of course, the Shanique Myrie case and the decision of the Caribbean Court of Justice (CCJ) involve more than the issue of searches. The fact is that the Myrie case is not about the application of domestic law but the application of international law, or Caribbean Community Law in the form of the interpretation of the Revised Treaty of Chaguaramus (RTC).
The central legal issue in the case revolved around the interpretation of certain sections of the RTC and the 2007 Conference decision of the Heads of the Caribbean Community.
The Report on that Conference said:
“The Conference agreed that all CARICOM nationals should be entitled to an automatic stay of six months upon arrival in order to enhance their sense that they belong to, and can move in the Caribbean Community, subject to the rights of member states to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds. Noted the reservation entered Antigua and Barbuda in this regard.”
Barbados, among other things, sought to argue that:
1. the Conference Decision was ineffective because it used the word “agreed” and not “decided”.
2. the fact that Antigua and Barbados entered a “reservation” rendered the decision ineffective since a decision is only binding if it is unanimous; and
3. Section 240 of the RTC requires the Conference Decision to be domestically enacted before it became binding.
All of the above arguments were shot down by the court.
For example, in respect of the argument at 3. above, the court observed at paragraphs 49 and 50 of the judgment:
“[49] Barbados has viewed and defended this case almost entirely from the perspective of its national law. The court, however, disagrees with the submission that the 2007 Conference Decision could not have created a legally binding right for Community nationals since Barbados has not as yet enacted that decision domestically as required by Article 240(1) RTC.
“[50] The basic presumption of the Barbados Immigration Act is that persons who are not citizens or permanent residents in Barbados have no legal right whatsoever to enter the territory. As a general proposition this is a correct reflection of international law regarding immigration, although there are a few exceptions to this rule.
“The RTC, however, and more particularly the 2007 Conference Decision, brought about a fundamental change in the legal landscape of immigration throughout the Community. In contradistinction to foreigners in general, Community nationals now do have a right to enter the territory of Barbados and that of other member states unless they qualify for refusal under the two exceptions mentioned above.”
The court went on to hold that based on Article 45 of the RTC and the Conference Decision, Community nationals had the right to a definite stay in member countries for up to six months.
Article 45 of the RTC reads: “Member states commit themselves to the goal of free movement of their nationals within the Community.”
Paragraphs 62 and 64 of the judgment of the court explain the court’s view of the Conference Decision and its effect. Those paragraphs state in part:
[62] “It is clear that the 2007 Conference Decision is just another step in furthering a fundamental Community goal of free movement that is not only envisioned by the RTC, but in some instances already achieved by it. The decision takes this goal beyond the defined group of Community nationals who are seeking economic enhancement in one way or the other and broadens it to Community nationals in general.
“It clarifies one aspect of the goal in that it gives every Community national the right to enter any member state and stay there for up to six months. The right conferred is expressed as an entitlement to ‘an automatic stay’ or ‘a definite entry’ of six month upon arrival.
[64] “The 2007 Conference Decision emphatically states that the right of entry and definite stay of six months is ‘subject to the rights of member states to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds’. In its submissions Barbados appears to regard these two qualifications as conditions precedent to the acquisition of the right of entry and six-month stay.
This would explain why Barbados, in construing these words of the decisions, leans heavily on its domestic law and the discretion which is accorded to its immigration and customs officers under that law.
This approach, however, is not correct. The wording of the decision where it speaks about “automatic stay” or “definite entry” upon arrival, suggests that the right does not depend on discretionary evaluations of immigration officers or other authorities at the port of entry. The fact that entry and stay are described as “definite” and “automatic” precludes any dependency of the right itself on the exercise of domestic discretion.”
The court further held that a Community national would only be refused entry if such national is “undesirable” or would become “a charge on public funds”.
There are several matters arising from the judgment that merit extensive consideration. These include the “standard of proof”, which the court seemed reluctant to state conclusively, and the meaning of “undesirable” and “a charge of public funds”. I will explore these and other matters in future articles.
• Cecil McCarthy is a Queen’s Counsel.
