Thu | Oct 19, 2017

Maybe we should scrap CARICOM after all

Published:Sunday | October 19, 2014 | 12:00 AM
Jeffrey Foreman
K George Powell
1
2
3

Right of hassle-free travel can't be withheld willy-nilly

Jeffrey Foreman and K. George Powell, Guest Columnists

The most recent denial of entry of Jamaicans to the shores of Trinidad and Tobago has set off a predictable flurry of commentary. One contribution in particular, that of Ricardo Brooks, in the Tuesday edition of this paper, warrants a fulsome response.

In his article, headlined in print, 'Come off your anti-T&T high horse' (alternatively headlined in the online edition 'CARICOM is not a federal state'), Mr Brooks asserts that Trinidad has the right to admit anyone it wishes into its borders and, in consequence of this, may "refuse any person it deems ineligible". This right of refusal derives from Trinidad's "exercise of its sovereign authority".

Mr Brooks is right in so far as a country has full say in determining the qualifications for entry into its borders. However, he fails to recognise another dimension of sovereignty. In the exercise of their sovereign powers, states can circumscribe their rights by entering into treaties with other states. When a treaty is made, the parties become bound under the principle of pacta sunt servanda, which requires them to honour their treaty obligations.

In Trinidad's case, it entered into the Revised Treaty of Chaguaramas (RTC) with other members of CARICOM and agreed to be bound by the provisions therein. A few of those provisions are worth highlighting.

In Article 9, member states agreed to "take all appropriate measures, whether general or particular, to ensure the carrying out of obligations arising out of this treaty or resulting from decisions taken by the organs and bodies of the Community", "facilitate the achievement of the objectives of the Community", and "abstain from any measures which could jeopardise the attainment of the objectives of this treaty".

In relation to judgments of the Caribbean Court of Justice (CCJ), the sole entity with authority to "hear and determine disputes concerning the interpretation and application" of the RTC, member states agreed to comply with judgments of the court. Such judgments constitute binding precedent for all member states (see Article 221 and Paragraph 20 of the CCJ's judgment in Shanique Myrie v Barbados [2012] CCJ 3).

FUNDAMENTAL CHANGE

The relevant decision of the court here is its most well-known judgment in Shanique Myrie v Barbados. The facts and outcomes are too well known to be repeated here. What must be emphasised is the CCJ's interpretation of the 2007 Conference Decision of the CARICOM heads of government (Trinidad was in agreement with this decision). At this sitting, the conference agreed as follows:

"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."

The effect of this agreement was to bring about "a fundamental change in the legal landscape of immigration throughout the [Caribbean] Community" so that "Community nationals now have the right to enter the territory of … member states unless they qualify for refusal under the two exceptions" of undesirability and being a charge on public funds. The CCJ held that this right entitles CARICOM nationals to hassle-free entry and stay in another territory.

Importantly, the CCJ ruled that this right cannot be abridged based simply "on discretionary evaluations of immigration officers or other authorities at the port of entry". Additionally, the court determined that the scope of restriction of the right to free movement "must be interpreted narrowly and strictly in order to avoid an unjustified watering ... of the right ... " and that the refusing state bears the burden of proving that a national denied entry was either an undesirable or likely to be a charge on public funds.

'UNDESIRABLE'

An undesirable is a national who "presents a genuine, present and sufficiently serious threat" to public morals, national security, and safety. A national is likely to be a charge on public funds where it can be shown that he or she does not possess sufficient funds to meet the expenses of their intended stay.

The 2007 conference decision also has procedural consequences for member states. Where refusal takes place, reasons must be given in writing explaining why the person was refused and the person must be informed of his right to challenge that decision to an "effective and accessible appeal or review procedure with adequate safeguards to protect the rights" of that person. This must be done promptly.

The plain words of the 2007 conference decision and the interpretation given to them by the CCJ clearly contradict any argument that "we are not entitled to anything outside of Jamaica" or that admission to another CARICOM country is discretionary to that country's "legitimate right to decide who can and cannot enter its borders".

It follows from this that the CARICOM passport is not any way akin to a visa, but is rather the tangible physical representation of the right of CARICOM nationals to hassle-free movement throughout the Community. All CARICOM nationals are entitled to the benefits contained in the RTC and, as a consequence, any national seeking entry anywhere in CARICOM is entitled to have his bid for entry assessed on its own merits without reference to the behaviour of others who happen to share his nationality.

PERMITTED TO DENY ENTRY

Therefore, under the RTC, it is impermissible for the Trinidadian authorities to deny entry to Jamaicans simply because some Jamaicans have given their fellow countrymen a bad name. CARICOM is definitely not a federal state, but this does not mean that the rule of law is non-existent at the Community level.

In his article, Mr Brooks assails those Jamaicans who are calling for withdrawal from CARICOM as "misguided at best and stupid at worst". Among a plethora of curious assertions contained in his article, this one is probably the most curious of them all.

The current round of quarrelling between Jamaica and Trinidad is not just a silly tit for tat, but raises the question of whether CARICOM is still a project worth pursuing. Given recent events, Jamaicans are neither misguided nor stupid for asking the question.

The trade imbalance between Jamaica and Trinidad is fairly well documented and indicates in part that Trinidad has taken full advantage of the free movement of goods aspect of the CARICOM arrangement. However, given the pronouncements of the Trinidad national security minister, it would appear that his country is not too keen on the free movement of persons part of the deal, particularly in respect of Jamaicans.

Jamaicans are right to ask what they are getting out of the CARICOM arrangement and if the only tangible examples Mr Brooks can come up with are University of the West Indies (UWI) and Caribbean Examinations Council (CXC), it would seem that the proponents of withdrawal could be on to something.

UWI predates CARICOM and its predecessors, the West Indies Federation and CARIFTA, and if UWI could survive the acrimonious break-up of the Federation, it is unlikely to collapse if CARICOM goes away. Simply put, we do not need the mechanism of CARICOM for the sake of UWI or CXC, and we don't need an ambitious integration movement just to collaborate on certain issues when so necessary.

If CARICOM is meant to be more than these things, member states should get on with the business of seriously attempting to make the arrangements work. They could start with respecting the rule of law within the Community.

If the intent is merely to make a treaty with ambitious provisions and goals which are not meant to be adhered to or seriously pursued, we should stop wasting time now and simply abandon the CARICOM experiment.

K. George Powell is an attorney-at-law and Jeffrey Foreman is a second-year student at the Norman Manley Law School. Email feedback to columns@gleanerjm.com and foreman.jeffrey@gmail.com.