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Oct 10, 2013 Features / Columnists, Peeping Tom
There has been an almost eerie silence from the legal luminaries in the Caribbean as it relates to the recent decision by the Caribbean Court of Justice in the Shanique Myrie case. It is strange that on such an important decision there has only, so far, been a sprinkling of commentaries by our legal luminaries, most of which have been explanatory in nature.
Given the controversies that has greeted the Caribbean Court of Justice (CCJ), it was anticipated that the recent decision would have reopened the debate about the competence of the Court, a factor which many feel is responsible for the timid approach by many member states of Caricom to accede to the Court in its Appellate jurisdiction.
Given the penchant for legal polemics in the Caribbean legal fraternity, one can only assume that the absence of any serious legal dissection of the decision in the Shanique Myrie case testifies to the level of respect and agreement with the decision handed down by the eminent members of the CCJ.
At the heart of this decision is the issue of the creation of Community rights and obligations. Are these rights created when decisions are incorporated into municipal law? Or do such rights exist outside of such incorporation?
Caribbean States has always held a dualist approach towards external laws. As such these international laws are binding only on the contracting States. In order to give effect to these laws, within national jurisdictions, such laws they would require incorporation into municipal law. The issue at stake however, in the recent Shanique Myrie was whether Community rights and obligations existed irrespective of this incorporation.
The recent decision has definitively settled that question. Such rights and obligations exists even where measures to give effect at the domestic level through incorporation in municipal law is absent. The failure of incorporation into municipal law therefore does not deny the existence of Community law to which all States are bound. The CCJ is entrusted with adjudicating disputes in respect to Community rights.
The effect of the 2007 decision of the Caribbean Heads of Government Conference was that Caribbean nationals are entitled to a six-month stay in another Caribbean country except where they are deemed undesirables or represent a charge on public funds. In respect to the latter, the CCJ argued that the fact that a person does not have sufficient cash in hand, does not mean that such funds are not available to them or indeed that the absence of such funds would result in cost to the public purse.
This ruling creates a whole new paradigm in terms of travel within the Caribbean and it is important to Guyana whose nationals are often been ill-treated and subjected to demeaning and degrading treatment by immigration officials in certain regional countries.
One of the important implications of this recent decision has to do with what many Guyanese travelers refer to as “show money.” Many Guyanese travelers are often grilled when they arrive in certain countries of the Caribbean about whether they have sufficient funds to take care of their stay. As such many of them walk with what is called, “show money” to establish that they have the funds.
The ruling affirms the right to automatic entry subject to the exceptions of undesirability or a charge on public funds, and this confirmation should alone, allow the liberalization of the movement of passengers and the anxieties that many Guyanese face when visiting certain countries in the Caribbean, and having to be subject to grilling by immigration officers unlike foreign nationals who are often admitted without much questioning.
Guyanese travelers have long suffered at the hands of immigration officers. Instead of the Guyana Government doing what Shanique Myrie and the Jamaican Government did by taking the Barbadian Government to the CCJ, all kinds of innocuous responses were made by the Bharrat Jagdeo administration, including a proposal to send Guyanese immigration officers to Barbados.
In fact, just around the same time as the Shanique Myrie decision was given, the Ministry of Foreign Affairs of Guyana was designing some protocol with the Barbadian authorities as to how immigration disputes were to be treated.
All of that is now irrelevant. The CCJ has reaffirmed the automatic right to a six-month stay in a Caribbean country by a national of another Caribbean State, subject to the two exceptions mentioned above.
More importantly, there existed a mechanism, court action, for challenging the denial of entry by immigration officers.
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“exceptions of undesirability” … what are the determining guidelines? Will travelers be given a “desirability list” with which to adhere; much like the posted dress code for the Cultural Center?