Caricom Justice

This case is of interest because of the alleged abduction of Mr. Thomas from Barbados. Brent Thomas is a licensed gun and ammunition dealer and brought this claim through the High Court of Trinidad & Tobago (TT) against the Attorney-General and the Director of Public Prosecutions arising out of police investigations into his business, the issue of six search warrants and an abduction. The claim was heard before Mr. Justice Devindra Rampersad.  

According to the judgment the evidence of Mr. Thomas was that at around 3 am on 5 October 2022, while asleep in his hotel in Barbados,  he was jolted awake by shouts of “Police” and banging on his hotel door. Upon opening the door, he observed a large group of men dressed in black and armed with guns. The men then entered into the room, asked for a copy of his identification card and placed him in handcuffs. He was then put into a waiting police vehicle which conveyed him to a police station.

Mr. Thomas further  stated that he was placed in a small cage at the back of a police van and left there until midday. He was not given any food, water or an opportunity to place a telephone call. Further, no explanation was provided as to why he was being detained.  Around midday, the Barbadian officers transported him to another police station where he was kept in a cell until 5 p.m.

He was then taken to Grantley Adams International airport where he was taken into a small plane and taken back to TT. Rampersad J. stated that  all of this evidence was unchallenged by opposing evidence.

It was on this basis that Mr. Thomas was seeking a declaration that the arrest, detention and forcible abduction within, and the removal from Barbados to TT, at the behest of the State of TT acting through its servants and or agents, were grossly abusive, unconstitutional, unlawful, unnecessary and disproportionate and in particular, contravened Mr. Thomas’ constitutional rights and was otherwise contrary to the rule of law.

Justice Rampersad concluded that the sole reason for Mr. Thomas’ detention in Barbados was for him to be deprived of his liberty sufficient for ASP Birch and SS Martin and Corporal Joefield (TT police officers) to go to Barbados and return Mr. Thomas to TT under their custody. They obviously had no jurisdiction to detain the first claimant in Barbados. The intention, therefore, was to have him detained there and to forcibly abduct him under the pretence of police legitimacy since there was no evidence that Mr. Thomas accompanied the police contingent from TT willingly.

In addressing the issue of Barbados’ role  Rampersad J. noted that there was no doubt that Barbados was a Commonwealth territory for the purpose of the Extradition (Commonwealth and Foreign Territories) Act Chapter 12:04 of the laws of TT.  Barbados had also enacted its own international obligations in relation to extradition in its Extradition Act, 1979. Therefore, the rule of law and due process of law would have been easily attainable by following the process thereunder. However, the process was not followed. Instead, it is undoubtedly an inescapable inference that the Barbados Police Force detained the first claimant upon the request of the Trinidad and Tobago Police Service.

Concerning the abduction Rampersad J. said: “Words cannot express the abhorrence that the court feels towards this unlawful act in a supposed civilized society governed by a Constitution in which the freedoms of the citizens are supposed to be protected.”

Constitutional relief was granted including damages, for the breach of the claimants’ constitutional rights. Thomas v. the AG and DPP Claim No. CV2022-04567

VAX WARS – Reasonableness & Proportionality Required

Sir Denys Byron, former Chief Justice of the Caribbean Court of Justice and Professor Rose-Marie Belle Antoine have penned a paper considering the legality of mandatory vaccines. From the outset the paper admits that it is meant to provide legal support for the policy direction of the governments of the Organisation of East Caribbean States (OECS). Its objectivity may therefore be ever so slightly compromised.

The two have concluded that the Caribbean legal framework does support mandatory vaccines, but this is not the end of the discussion, after all it is accepted that legal frameworks have in the past been notorious for supporting great injustices. And indeed current legal frameworks must evolve to suit the interests of the people which they are meant to serve and protect.

The paper makes a distinction between mandatory vaccination enforced by the State and mandatory vaccinations pursued by the private sector. The first raises issues of constitutional and human rights law and the latter labour law and administrative law. Byron and Antoine however also conclude that legitimacy in the law is not all that is required, mandatory vaccines still may not be desirable or necessary.

Thus Governments are required to examine two principles – reasonableness and proportionality. The question is whether vaccination is a reasonable option given the other alternatives and taking the route least harmful to human rights. The two argue that it is essential then that Governments consider the established science that supports the vaccine and one may also add here the established science that does not support it.

One of the supporting arguments for mandatory vaccines is that they are already part of the status quo, however there are those who have navigated life without ever taking vaccines, there being a carve out for such persons in the law. Would a mandatory vaccine now abrogate long, established existing rights? Naturally the paper also states that any law or policy mandating vaccines must make exceptions on medical and religious grounds. Would those who have spent a lifetime avoiding as far as possible putting processed substances into their bodies fit into such a category? They might prove to be the most resilient against COVID-19.

History is littered with so many instances when the majority thought they knew what was best for minorities with disastrous consequences.

As far as the workplace is concerned the paper submits that employers could justify a requirement in a pandemic context, at minimum where the workplace is a high-risk environment, such as health-care, or essential services, or for workers more at risk at the workplace, such as frontline workers interacting with the public. The point is made that it is unlikely that employers would be held to a higher standard than a constitutional standard.

Of course in Barbados the Government has not mandated vaccines, so that the employers seem to be relying on principles not endorsed by the Government and are therefore currently requiring a higher standard than Government. A recent rebuke by the Chief Labour Officer to a private sector enterprise is instructive.

The Fundamental Rights provisions in Caribbean constitutions all provide for exceptions. The right to liberty in the law must be balanced against imprisonment of those found guilty of serious offences in order to protect the rest of the society. Thus the issue with mandating a vaccine is a balancing of conflicting rights. Byron and Antoine suggest that the Court could take into consideration:

1. PPE and masks not sufficient to contain the enduring a COVID-19 virus and pandemic;

2. Vaccination is safe and effective both to reduce transmission and ameliorate severe disease and death and the only means to do so;

3. COVID-19 is deadly and becoming deadlier;

4. COVID-19 presents a huge burden to the state, individual livelihoods and commercial infrastructure so must be contained;

5. The social and economic cost when hospitals are overwhelmed, including preventing persons who are ill with other ailments and need hospitalization

Of course there are those who may very well wish to question the validity of some of the five grounds outlined above.

This is an evolving area of law and the paper concludes that “[u]ltimately, all actions and toward compulsory vaccination must be grounded in a firm belief that they are being done in the interest and sustainability of the economy and enterprise, in the public interest, the interests of all workers and as a last resort, necessity. Those core principles will be what justifies actions as being reasonable and proportionate as required, and what will ultimately persuade a court.”

What Shanique Myrie v The State of Barbados Teaches Us About The Award of Damages Under The Revised Treaty of Chaguaramas Regime

Shanique Myrie, a Jamaican national, had claimed that prior to deportation from Barbados to Jamaica in 2011, she was subjected to a body cavity search and detained in an unsanitary cell overnight. She had also claimed that she was discriminated against on the basis of her nationality. As a result, she asked the Caribbean Court of Justice (“the Court”) to make an Order for Barbados to pay special and punitive damages and an Order for the recovery of all her legal costs. The Court considered the matter applying the Revised Treaty of Chaguaramas (“the RTC”) and a 2007 Decision of the Heads of Government of CARICOM.

According to the Court, in order for a claim for damages to succeed, the Claimant must show that the RTC provision breached was intended to benefit her, the breach must be a serious one, the damages or loss should be substantial and there should be a causal link between the breach by the State and the loss or damages claimed.

The Court stated that under the RTC regime, the damages that can be awarded by the Court are compensatory. There is no place for exemplary or punitive damages before the Court in its original jurisdiction. The Court referred to the case of Trinidad Cement Limited TCL Guyana Incorporated v. The State of the Co-operative Republic of Guyana [2009] CCJ 1 (OJ) where this principle was established. The reason behind this is, the civil law jurisdictions in the Community do not allow for the award of exemplary damages and therefore this remedy cannot be a part of a legal structure that embraces both traditions.

The compensatory damages that can be awarded in international law are those for pecuniary loss or damage and non-pecuniary loss or damage. Pecuniary loss or damage means that such loss or damage can be calculated in terms of dollars and cents.  For example, you may claim that your bag which you bought for S50.00 was destroyed and therefore ask to be compensated $50.00 for the loss and damage. It follows that non-pecuniary loss or damage cannot be quantified in monetary terms. This type of compensation is usually for mental suffering, injury to feelings, humiliation, degradation, loss of social position or damage to reputation.

The Claimant claimed the sum of JA $112,000.00 for the airline ticket and medical expenses. This amount was not challenged by Barbados and the Court held that she was entitled to that amount for pecuniary damages.

The Court was of the view that the body cavity search and the conditions of her overnight detention constituted a very serious breach of her right to enter Barbados free of hassle and harassment. The Court then sought to determine whether this treatment was sufficiently related to the exercise of her right of entry. The Court found that the breach of the right encompassed all that took place at the airport in Barbados between the time of her arrival there and her deportation the following day.

The Court pointed out that it was not awarding damages for human or fundamental rights breaches; neither was it seeking to create an appropriate remedy for assault or unlawful detention since these are not causes of action actionable before the Court in its original jurisdiction. The Court stated that it was instead awarding damages for breach of the right to enter Community States without harassment and hassle. The Court was of the view that there must be a high award of damages for the breach since it was accompanied by serious circumstances.

Consequently, the Court ordered the State of Barbados to pay the Claimant Bds $2,240.00 (JA $112,000.00) for pecuniary damages and Bds $75,000.00 for non-pecuniary damages. The Court also ordered the State of Barbados to pay the Claimant’s legal costs.

                                                                                                                                         – Kara-Je Kellman

Shanique Myrie v. The State of Barbados: CARICOM Nationals’ Right of Entry Into Community States

In Shanique Myrie v. The State of Barbados [2013] CCJ 3, the Caribbean Court of Justice (“the Court”) sitting in its original jurisdiction was faced with an issue of major importance, that is, whether and to what extent CARICOM nationals have a right of free movement within the Caribbean Community.

The Claimant, Shanique Myrie who is a Jamaican national, arrived in Barbados on March 14 2011, was denied entry and the following day was deported to Jamaica. She brought an action against the State of Barbados in 2012 and asked the Court to make several Declarations and Orders including an order to pay special and punitive damages. The State of Jamaica joined the Claimant and was granted the status of Intervener by the Court.

The law applicable to this case is the Revised Treaty of Chaguaramas (“the RTC”) and the Decision of the Conference of Heads of Government of the Caribbean Community taken at their Twenty-Eighth Meeting (“the 2007 Conference Decision”).

Article 45 of the RTC states: Member States commit themselves to the goal of free movement of their nationals within the Community.

The 2007 Conference Decision reads:

“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.”

After hearing submissions from Barbados and the Community, the Court held that the use of the word “agreed” and not “decided” is inconsequential and accordingly, the 2007 Conference Decision is effective.

The Court was then met with the question, whether article 240 of the RTC requires the 2007 Conference Decision to be enacted at the domestic level before it becomes binding on that particular Member State. Article 240 (1) and (2) states:- 1. 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. 2. The Member States undertake to act expeditiously to give effect to decisions of competent Organs and Bodies in their municipal law.

Under the Barbados Immigration Act (Section 3), there is a basic presumption that persons who are not citizens or permanent residents of Barbados have no legal right of entry into the country. However, the Court stated that as a result of the RTC and the 2007 Conference Decision, CARICOM nationals do have a right to enter Barbados and all other Member States. The Court further stated that it is the duty of every Member State to ensure that its domestic law reflects and endorses Community law.

However, it should be noted that there are two exceptions to the right of entry, namely, that the Community national is an undesirable person, and, it is evident that the Community national will become a charge on public funds. The Court noted that since these grounds of refusal of entry are exceptions to a fundamental principle of free movement, the premises on which the refusal is based must be interpreted narrowly and strictly. Further, the burden of proof lies on the Member State that seeks to invoke either ground for denying entry.

As it relates to undesirability, the Court held that no restrictions in the interests of public morals, national security and safety, and national health should be placed on the right of free entry of a CARICOM national unless that person presents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

In the event that a Member State denies entry to a CARICOM national, that State is required to give to the person reasons for the denial of entry promptly and in writing. The Court expressed the view that it would be reasonable to permit persons who have been refused entry the opportunity to contact an attorney or consular official of their country or a family member.

In light of the CCJ’s judgment in Shanique Myrie v The State of Barbados which highlighted relevant articles in the Revised Treaty of Chaguaramas and the 2007 Conference Decision, Community nationals have a right of entry into the territories of Member States and are entitled to an automatic stay of six months upon arrival. This definite right of entry may only be derogated from where the person is an undesirable or it is evident that the person will become a charge on public funds. The grounds for refusing entry to a CARICOM national must be narrowly and strictly interpreted.

                                                                                                                                         – Kara-Je Kellman