By Emmanuel Joseph in Port of Spain
Barbados today urged the Caribbean Court of Justice to throw out the entire evidence of the Jamaican woman who is seeking over a million dollars in damages from this country, for alleged degrading, inhumane and discriminatory treatment, if the court found her to be untruthful in any one aspect of her claim.
Concluding his final submission before the CCJ at its headquarters in Port of Spain, Trinidad and Tobago, lead attorney for the Government, Roger Forde QC, advised the tribunal that before agreeing on a ruling, it should start its deliberations by first assessing the evidence of Shanique Myrie, the 22 year old Jamaican, whose own attorney, Michelle Brown admitted yesterday that her client had made certain “errors” in her testimony.
But while Brown noted that Myrie’s concession of those errors should cause her to be seen as a credible witness, Forde did not share that view.
“You are looking for reliability of evidence,” he said. “The approach should be to dismiss the evidence in its entirety if the witness is found to be untruthful in any one aspect of her evidence.”
He submitted there were several untruthful statements by Myrie and therefore all should be dismissed.
“The court should find the witness was not reliable. That’s the general approach to my assessment of the evidence,” he added.
On the question of damages, the senior lawyer, when asked by one of the judges how much he would recommend if the claimant merited damages, Forde replied: “No more than nominal damages if there was a breach of the entry alone.”
It was at this point that several of the justices expressed some concern about how they would measure any damages in Myrie’s case, should it come to that.
“We need to have comparable evidence to assess these damages. We have to assess the doctor’s medical report,” interjected one judge.
Another judge suggested there should be some evidence to assess the degree of suffering Myrie was claiming she endured after the alleged body cavity search and “insults” by Barbadian border officials on March 14, 2011 at Grantley Adams International Airport.
A third judge asked the Barbados legal counsel if he would agree to having a separate hearing to deal with the issue of damages for the claimant.
Forde responded in the affirmative.
He also told the court that while Myrie was seeking $800,000 in punitive and moral damages citing a legal precedence, as far as he was concerned the two cases were substantially different. He reasoned that the case alluded to by the claimant’s attorney, Michelle Brown, made Myrie’s allegations look like a Sunday school.
On the accusation of human rights breaches, the Queen’s Counsel was of the opinion that the regional tribunal should not be hearing such a matter, because it was not a human rights court.
In fact, he suggested that the matter should be heard in Barbados by the High Court. His position was that there were no binding human rights provisions in the Revised Treaty of Chaguaramas. He told the CCJ that human rights, taken in their totality, could not go towards awarding damages.
The seven member panel of judges also heard from the two attorneys representing CARICOM –†Gladys Young and Dr. Chantal Ononalwu. Young informed the justices that unlike previous arguments by the Barbados legal team, the decisions of the CARICOM Heads of Government Conference of 2007 were binding on all member states in the region.
She said the states were also under an obligation to uphold the provisions which gave six months automatic stay to regional nationals, even if they only wanted two weeks, for example.
Young stated that the only discretion immigration officers had in limiting that provision, was if the individual was an undesirable or would be a charge on the public funds.
The lawyer said, in response to a question from one of the judges, that if governments did not respond to the deadline given to accept the provisions, that action would be taken that they agreed.
She also dismissed Forde’s submission that the CCJ did not have jurisdiction to hear the issue of human rights. The view of CARICOM, as espoused by Young, was that the court had jurisdiction to hear matters where states did not respect allegations of breaches of the treaty or even decisions of the conference.
Her colleague, Onanalwu urged to court to put better procedures in place for the enhancement of treatment of CARICOM nationals. She also called for a system to be implemented where CARICOM was in control of the procedures and that there should be written reasons supplied to individuals who were subjected to adversarial decisions by border officials in the region. (EJ)††
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