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Under Scrutiny: Why was Barbados unrepresented?

2/20/2012

By Stephen Alleyne


IN another section of the press on Friday, a story taken from the Jamaica Gleaner stated that last Thursday the Caribbean Court of Justice (CCJ) held a case management conference in the Shanique Myrie matter by video link between the CCJ’s Port of Spain headquarters and the Supreme Court of Jamaica, involving Myrie’s attorneys, Michelle Brown and Marc Ramsay; and, Dr. Kathy-Ann Brown and Alicia Reid, who represented the interest of Jamaica. There was no mention of an appearance by counsel on behalf of Barbados, the respondent named in the application, and my investigations have confirmed that Barbados was indeed not represented.

How does the Solicitor General of Barbados, as the Government’s principal legal adviser in matters of this nature, explain the absence of an attorney from her chambers to represent the interest of Barbados? The only excusable answer the Solicitor General could have in the circumstances is that she was not notified of the date, time and place of the case management conference, and this seems far-fetched.

Once it is determined that a case management conference is necessary in an application before the CCJ, the Registrar of the CCJ is required by Rule 19.1 of the Caribbean Court of Justice (Original Jurisdiction) Rules 2006 to give all the parties reasonable notice of the date, time and place of the case management conference. And given the jealousy with which the staff of the CCJ are renowned for guarding their efficiency and integrity, I would bet my bottom dollar that there was no dereliction of duty on the part the Registrar of the CCJ. So it would be interesting to hear what excuse the office of the Solicitor General has for not attending Thursday’s hearing.

The Myrie case has been receiving considerable public attention from March last year when the Jamaican national alleged that she was improperly searched by a Government employee on her arrival at the Grantley Adams International Airport. With the permission of Jamaica, on January 6, 2012 she filed an application before the CCJ in her individual capacity against the Government of Barbados asking the Court to determine the minimum standard treatment to be given to CARICOM nationals under the Revised Treaty of Chaguaramas (RTC) and its goal of hassle-free travel. The case is therefore sufficiently important to Barbados as a CARICOM nation that a decision should have been taken the moment it was filed to assign an attorney in the office of the Solicitor General – or the Solicitor General herself – to the matter.

I am not sure if the authorities were caught napping, because I recall that when it was first hinted that Myrie was contemplating taking her complaint to the CCJ, there were many opinions as to whether she had locus standi to appear before that court. Some commentators felt she had a suitable remedy under the criminal law, but Myrie and her legal advisors were surely thinking about the rights of each and every CARICOM national.

Article XII of the Agreement Establishing the Caribbean Court of Justice gives the CCJ exclusive jurisdiction to hear and deliver judgement on applications brought by nationals of CARICOM member states with special leave of the CCJ concerning the interpretation and application of the RTC where the CCJ has determined that a right conferred by the RTC on a member state has inured for the benefit of the national as a citizen of the member state; that the national has been prejudiced in respect of the enjoyment of that right; that the member state entitled to bring the claim has omitted or declined to bring the claim; or has expressly agreed that the national should bring the claim. Nevertheless, the CCJ, under the same article, must find that the interest of justice requires that the national be allowed to bring the claim. Shanique Myrie would have had the sanction of the Government of Jamaica in bringing the claim in her individual capacity. However, it is a pity the Government was not represented when the CCJ was considering whether, in the interest of justice, Myrie should be allowed to bring the claim.

The matter has, however, reportedly been adjourned until April this year, though a date and place of trial have not been determined. Of course, the CCJ is an itinerant court and it is very likely that the hearing could take place in Barbados. So Myrie could very well be in Barbados, if not in April, sometime this year, to attend the hearing of her matter, which, ironically, she does not even need permission from the immigration authorities to attend. Article XII of the Protocol on the Privileges and Immunities of the Caribbean Court of Justice guarantees her uninterrupted passage within Barbados in the absence of any reasons of national security, and I do not foresee any threat to national security as far as she is concerned. All that is required is that the Registrar of the CCJ give her name to the Government of Barbados as one of the persons attending the hearing. But that is mere speculation.

What I will say, however, is that the case is too important to the CARICOM integration movement to be treated with indifference. Thus, the office of the Solicitor General must be fully prepared to represent the interest of Barbados whenever the matter is set down for hearing.


(Stephen Alleyne is an attorney-at-law and former member of the Royal Barbados Police Force. Email: swalleyne@hotmail.com)

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