by Emmanuel Joseph
in Port of Spain
Barbados is pinning the success of its case against Jamaican Shanique Myrie on if the Caribbean Court of Justice finds Myrie was undesirable and if senior immigration officer, Merlo Reid did not act capriciously or irrationally in revoking her entry into the country on March 14, 2011.
This was the crux of the final submission made by Roger Forde, lead counsel for the Barbados Government, when he addressed the panel of seven judges of the CCJ, sitting at its 134 Henry Street, Port of Spain, Trinidad and Tobago headquarters this morning.
“The crux of this case rests on undesirability and whether Merlo Reid acted reasonably. Even if Ms. Myrie was found not to be undesirable and Merlo Reid did not act capriciously or irrationally, Barbados would not be liable,” Forde told the court.
The Barbados legal representative told the justices their decision was to review the actions of the border officials and not to substitute their views for those of the senior immigration officer.
“It is your task to look at the facts and legal matrix — undesirability and sufficiency of funds — and the actions of Merlo Reid and not to substitute your views for his,” added the Queen’s Counsel.
He began his submission by addressing the issue of the jurisdiction of the CCJ in this matter.
“Let me begin on jurisdiction, because it underpins everything in this case. Your jurisdiction is based on Article 1 (of Revised Treaty of Chaguaramas). You are simply here to adjudicate over Myrie,” he continued.
“You are basically hearing and not here to settle a dispute between member states.”.
He submitted that under Article 222 of the same treaty, the claimant must prove there was some right and that she has been prejudiced in that.
“We are not concerned about any rights outside of the treaty,” the senior counsel told the court.
He noted that Myrie has alleged a breach of a right to enter Barbados, discrimination, most favoured treatment and fundamental rights. Forde reasoned that the RTC granted Myrie no right to enter in this matter.
The Barbados attorney suggested that at the heart of Myrie’s claim was the conference decision.
“The burden is on claimant to establish that the conference decision is binding and that it was passed,” Forde insisted.
“The decision was not binding and subsequent practice supports my submission that it was not binding. The conference decision does not comply with Article 28. Since we are a rules-based system, we should follow the rules.”
Forde said he was concerned that CARICOM Heads and organs sat in a room, in-camera and made decisions without publicising the “binding” decisions and that there was a lack of transparency.
One of the judges interjected and pointed out that there was a difference between rights and obligations on an international level and at the domestic level. Forde responded that unless constitutional procedures were made, such as introduction of new legislation, no rights were made, domestically or internationally.
“When the immigration officer examines you, he examines you on desirability and charge on public funding. He must still consider the charge on the public purse. A person who does not have requisite funds can’t get six months, but only what the money can afford,” he argued.
Another of the justice at this point, commented that if the conference decision was binding, it did not matter how long the visitor was staying; there was an obligation on the immigration officer to give the person six months.
One of his colleagues suggested that this case hinged on if Myrie was an undesirable, not if she would be a charge on the public funds. Forde submitted that the subsequent cancellation of Myrie’s earlier permission to stay in Barbados was based on her misrepresentation … that she knew Miss Clarke, that she spoke to her on the Internet weekly and that she was staying with her. Miss Clarke denied she knew Myrie. email@example.com††††