Editorial: Developing Community law
The recent decision of the Caribbean Court of Justice in the preliminary matter brought against Barbados by a Grenadian family; whereby the family sought to impugn Barbados as having infringed their rights as CARICOM nationals under the Revised Treaty of Chaguaramas serves to illustrate, with some clarity, the nature and extent of these entitlements.
It will be recalled that in Shanique Myrie v Barbados in 2013, the Court, in its original jurisdiction, had determined that as the result of a decision of the [Heads of Government] Conference made in 2007, there had been created on the Member States to the Treaty “a binding obligation to allow all CARICOM nationals hassle free entry and an automatic stay of six months upon arrival into their respective territories subject only to two exceptions: the right of Member States to refuse entry to ‘undesirable persons’ and their right ‘to prevent persons from becoming a charge on public funds’.” This obligation has been re-emphasised in subsequent holdings.
In the matter at hand, the applicants had entered Barbados on October 11 2016 for the purpose of conducting business at the US Embassy. After completion of that business, the family visited a mall in Bridgetown, where the where a storeowner accused the two adult daughters of the theft of a mobile phone. The owner then sought the intervention of the police and the daughters were arrested, taken into custody and, according to their evidence, subjected to “humiliating and degrading” strip searches.
Together with their parents, they now sought special leave to commence proceedings against Barbados for a violation of their rights to freedom of movement, a claim that was denied by Barbados. In order to succeed in their application, the family had merely to make out an arguable case.
The CCJ determined that they had not done so. It agreed with the submissions of Barbados that where the Applicants were taken into police custody for the purpose of police investigations in the circumstances outlined, it could not be held that they had made out an arguable case that they were prejudiced in the enjoyment of their right to move freely within the State of Barbados. The judgement states clearly, “Freedom of movement under the RTC does not immunise CARICOM nationals from the operation of law enforcement agencies in the receiving State”.
In its view, the applicant family would have had to show some element of discrimination based on their nationality in that they were subjected to treatment that is worse or less favourable than is accorded to a person identically situated, except for the fact that he or she is of a different nationality. As the CCJ reasoned, this was not the case here, since “any national of Barbados could face disadvantages or disabilities should they be in police custody and miss a flight that had been booked for them to depart from Barbados…”
We comment only on the fact that proof of overt discrimination is most frequently elusive. Might the daughters have argued successfully that they would have been less likely to be accused of theft if they were Barbadian?
Nevertheless, the interposition of the official police investigation and subsequent action would have cogently displaced any suggestion that a Barbadian would have been otherwise treated.