The unanimous landmark judgment delivered by the Caribbean Court of Justice (“CCJ”) on 4th October 2013 in the case of Myrie v Barbados applies to St Kitts and Nevis as much as it does to Barbados and Jamaica. Movement of our nationals to other CARICOM countries, and of CARICOM nationals into St. Kitts and Nevis, are governed by the principles set out in the judgment.

This is because we, and the other eleven signatory countries (the “Contracting Parties”) to the Treaty establishing the CCJ, have accepted the “original” jurisdiction of the CCJ, although only three of the twelve countries have accepted the appellate jurisdiction. Those three are Barbados, Belize and Guyana, who no longer allow appeals to the Privy Council. Guyana ended appeals to the Privy Council decades ago, but Barbados and Belize only did so since the CCJ was created. All twelve countries have already paid for the complete CCJ, but only three are fully utilizing the Court.

The CCJ’s original jurisdiction mandates the CCJ to authoritatively adjudicate disputes concerning the Revised Treaty of Chaguaramas (“RTC”). The parties to original jurisdiction cases may be two or more CARICOM Member States, or a company or an individual versus a CARICOM Member State, or may include other legal entities within CARICOM.

I make the passing observation that, in contrast to Article 222 of the RTC, the wording of Article 18.5 of the Revised Treaty of Basseterre Establishing the OECS Economic Union (“RTB”) does not contemplate individual citizens or companies as being eligible to directly initiate proceedings under the dispute resolution provisions of the RTB. Therefore, although an adjudicative original jurisdiction is conferred by the RTB on the Court of Appeal of the Eastern Caribbean Supreme Court, any individual Myrie-type cases under the RTB appear improbable.

The Myrie decision

The Myrie case dealt with “important issues of Caribbean Community law which [had] not previously been addressed by [the CCJ]. The most prominent among them is whether and to what extent CARICOM (or Community) nationals have a right of free movement within the Caribbean Community" (from para [1] of the CCJ judgment).

I submit that the significance of the Myrie judgment lies more in the reasoning and related pronouncements of the Court than in the actual decision in Ms. Myrie’s favour.

Ms. Myrie brought the case against Barbados alleging that the treatment she received from border officials at the Barbados airport violated her rights. The core of her complaint was that she was wrongfully:

(i) denied entry into Barbados without good grounds and proper process, contrary to CARICOM Community law;

(ii) subjected to a painful and humiliating body cavity search by Barbadian border officials;

(iii) detained overnight in an unsanitary cell at the airport; and

(iv) deported from Barbados back to Jamaica the following day.

As the CCJ’s original jurisdiction allows in respect of alleged violations of the RTC, Ms. Myrie commenced her case directly before the CCJ, seeking vindication of her rights under Caribbean Community law. The case was not an appeal from a domestic High Court or Court of Appeal: it started in the CCJ. As can happen only in original jurisdiction cases, the Myrie case was a trial before the CCJ judges and they heard all of the oral testimony first-hand from the witnesses. No such cases can be heard by the Privy Council, which is an appellate court.

Faced with conflicting evidence from the parties, the CCJ detailed its reasons why it preferred Ms. Myrie’s account of her experiences at the hands (literally) of the Barbadian officials.

I urge you all, lawyers and non-lawyers alike, to visit the CCJ’s informative website to read not only the Court’s judgments, but also fascinating speeches and papers by the CCJ Judges dating from its inauguration in 2005 to the past month. Once you do so, I am certain you will agree with me that our CCJ Judges are articulate thinkers who express even complex ideas with admirable clarity.

For Ms. Myrie personally, the outcome of the case is the CCJ’s order declaring that Barbados breached her right as a CARICOM national to enter Barbados under CARICOM treaty law; and requiring Barbados to pay her compensatory damages totaling BDS$77,240.00, as well as her reasonably-incurred legal costs.

But the Myrie judgment has immense importance to all citizens throughout CARICOM and to all CARICOM Member States.

The CCJ in Myrie expressly asserts the status of “the Court as the Guardian of the RTC” and notes that:

“… in the area of freedom of movement within CARICOM, domestic courts or tribunals will, of course, be guided by this Court as it sets out the relevant Community law. If in the course of a domestic proceeding, new issues arise that have not been addressed by this Court, domestic courts and tribunals are required by Article 214 RTC to refer these new issues to this Court for determination before delivering judgment.” [82]
(All italics in this presentation have been added by the author for emphasis.)

Guidance for Immigration Officials & CARICOM Nationals

Very practical guidance to countries, immigration officials and CARICOM nationals was given by the CCJ in the Myrie judgment:

"The accountability principle requires Member States promptly and in writing to inform a Community national refused entry not only of the reasons for the refusal but also of his or her right to challenge that decision. The principle requires the Member States to provide at the national level an effective and accessible appeal or review procedure with adequate safeguards to protect the rights of the person denied entry." [78]

"Community law requires access to appropriate judicial review in a case of a denial of entry.” [80]

"Given the … characteristics of the right of entry it would only be in exceptional situations that entry into Member States will be denied to Community nationals. In those exceptional cases it would be reasonable, given also the sense of belonging that the 2007 Conference Decision seeks to instill in these nationals, to allow refused visitors the opportunity to consult an attorney or a consular official of their country, if available, or in any event to contact a family member. ... the Court holds that Community nationals are legally entitled to some such treatment." [83]

Fundamental New Legal Landscape

The CCJ emphasized that:

“Implementation of the very idea and concept of a Community of States necessarily entails as an exercise of sovereignty the creation of a new legal order …. Community law and the limits it imposes on the Member States must take precedence over national legislation, in any event at the Community level.” [69]

“The RTC … and … the 2007 Conference Decision brought about a fundamental change in the legal landscape of immigration throughout the Community. In contradistinction to foreigners in general, Community nationals now do have a right to enter the territory of Barbados and that of other Member States unless they qualify for refusal under the two exceptions …” [ie. undesirable persons or persons who may become a charge on public funds]. [50]

It is clear from the judgment that this right under Community law takes precedence over domestic laws, “at least in its application”.

As the CCJ powerfully pronounced:

"If binding regional decisions can be invalidated at the Community level by the failure on the part of a particular State to incorporate those decisions locally the efficacy of the entire CARICOM regime is jeopardized and effectively the States would not have progressed beyond the pre-2001 voluntary system that was in force. The original jurisdiction of the Court has been established to ensure observance by the Member States of obligations voluntarily undertaken by them at the Community level. The Court is therefore entitled, if not required, to adjudicate complaints of alleged breaches of Community law even where Community law is inconsistent with domestic law. It is the obligation of each State, having consented to the creation of a Community obligation, to ensure that its domestic law, at least in its application, reflects and supports Community law." [52]

CCJ’s Independence Clear

The CCJ’s institutional independence and freedom from any political control are exceptional. Any objective analyst could not truly assert otherwise.

(a) In both its original jurisdiction and its appellate jurisdiction the CCJ is a final Court, ie. there is no appeal from the CCJ to any other Court anywhere in the world. It does have power under Article XX of the CCJ Treaty to entertain an application for “the revision of a judgment of the Court in the exercise of its original jurisdiction”, but only in specified, restrictive circumstances.

(b) The President of the CCJ can only be appointed by the CARICOM Heads of Government from persons nominated to the Heads by the Regional Judicial and Legal Services Commission (“RJLSC”).

(c) The other Judges and staff of the CCJ are appointed directly by the said politically-independent RJLSC whose membership is as follows:

• the President of the CCJ, who is the Chairman of the Commission;

• two persons appointed jointly by the Organisation of Commonwealth Caribbean Bar Associations (“OCCBA”) and the Organisation of Eastern Caribbean States Bar Association (“the OECS Bar”);

• one chairman of the Judicial and Legal Service Commission of a Contracting Party on a rotating alphabetical basis for a 3-year term;

• one chairman of the Public Service Commission of a Contracting Party on a rotating reverse alphabetical basis for a 3-year term;

• two persons from civil society nominated jointly by the Secretary General of CARICOM and the Director-General of the OECS.

• two distinguished jurists nominated jointly by the Dean of the Faculty of Law of the University of the West Indies, the Dean of the Faculty of Law of any of the Contracting Parties and the Chairman of the Council of Legal Education; and

• two persons nominated jointly by the Bar or Law Associations of the Contracting Parties.

(d) The President and Judges of the CCJ enjoy security of tenure.

(e) The financing of the CCJ is as independent as can be, via the interest earned from a CCJ Trust Fund that is managed by a politically-independent, regionally-structured Board of Trustees whose membership includes the leaders (or their nominees) of Caribbean private sector organizations (insurance, indigenous banking, accounting, lawyers, etc.), the Caribbean Congress of Labour (“CCL”), the Chair of the Caribbean Conference of Heads of Judiciary, the CARICOM Secretary-General and UWI’s Vice-Chancellor.

In addition, the Court already has created a body of caselaw that unequivocally demonstrates its independence.

Attorney General of Barbados v Joseph & Boyce [2006] refuted any misconception that the CCJ was to be “a hanging Court”. In Gibson v Attorney General of Barbados [2010] the CCJ gave tangible expression to the concept of “equality of arms” in order to ensure fairness in a criminal trial. Marin & Coye v Attorney General of Belize [2011] strengthened the legal mechanisms for accountability of Ministers of Government by developing the common law in recognizing both civil and criminal consequences of misfeasance in public office. Although I must emphasize that no Court’s independence or integrity ought to be assessed by the number of its decisions against Governments, these and many other decisions of the CCJ should convince any sceptic that the CCJ is worthy to be the ultimate guardian of Caribbean Constitutions, as well as of the RTC.

In an address to lawyers in Montego Bay, Jamaica in December 2010 aptly titled “None But Ourselves Can Free Our Minds”, distinguished Jamaican international jurist Judge Patrick Robinson, who served for many years as President of the UN’s International Criminal Tribunal for the Former Yugoslavia, said:

“… From 1962 to 2009 the [Jamaican] Court of Appeal … determined about 13,000 appeals at an average of 270 per year. But the average annual per cent of those appeals that have gone to the Privy Council is just about 3%. Now, it has to be acknowledged that it would be unrealistic to expect appellate activity in our highest court to match appellate activity in the court below. That does not happen in any country I know of with a two-tier appellate body. When you have been brushed off once, you take the hint….

… in the research done the discovery that would, perhaps, most startle
those who berate our judges is something that I have instinctively known all
along; that is, in terms of reversals of their decisions our judges compare
favourably with their UK counterparts. The percentage of appeals allowed by the Privy Council from decisions of the Jamaican Court of Appeal is roughly the same as it is for appeals allowed by the House of Lords from decisions of the UK Court of Appeal -- between 30% and 40%. Our judges would, therefore, seem to be as good, or as bad, as the UK judges ….”

An Accessible Court

Robinson J. also makes the unanswerable point that the right of appeal to the Privy Council is more theoretical than real since it is not actually financially accessible to the vast majority of persons and companies in the Caribbean.

Contrary to popular belief, the CCJ has been a relatively busy Court. Delivering the Norman Manley Law School Distinguished Lecture in March 2013, CCJ Justice Winston Anderson shared the following statistics:

The European Court of Human Rights, drawing from a catchment area of 18 states, only heard 10 cases during its first 10 years. By comparison, in its first 8 years the CCJ has had 117 cases filed: 8 in the original jurisdiction and 109 domestic appeals. Of the appeals, 35 cases came from Barbados, 55 from Guyana and 19 from Belize.

Only 13 appeals went to the Privy Council from Barbados in the 10 years before the CCJ replaced the Privy Council there. The 35 appeals to the CCJ in less than 10 years represents a 269% increase in “the number of citizens gaining the benefit of a second or final appeal.”

“These numbers represent a spectacular increase in the use of the final court and hence in access to justice,” pointed out Anderson JCCJ. He further said:

“An interesting trend is the fact that the number of civil cases filed exceeds the combined total of criminal and constitutional cases. In other words, there are more cases filed in which the State is not a party than cases in which the State is. This is an important fact and change from the pattern in the countries which do not have access to the CCJ.”

A strong case can be made that the CCJ’s jurisdiction should be extended beyond that of the Privy Council’s to encompass election petition challenges, as suggested by Anderson JCCJ in his March lecture. Such jurisdiction would enhance uniformity of principles and rulings, and avoid the classification difficulty as to whether a challenge is electoral or constitutional in character. But at this point in time such a CCJ jurisdiction is but a visionary viewpoint, although to my mind an attractive one.

Beyond Talk

Many Caribbean Prime Ministers, including our own, from time to time claim to favour replacing the Privy Council with the CCJ but they do not appear to be taking any action to do so. Is the inertia of most Caribbean Governments in moving to make the CCJ their final appellate court caused by hesitant political leaders now being fearful of the independence and accessibility of the CCJ?

It would be sad to think that our region’s political leadership (whether in Government or in Opposition) is still, after all this time, stuck in the mindset that British justice is always better justice. Certainly the “Birmingham Six”, the “Guildford Four” and the “Maquire Seven” would not share that colonial perspective. These three groups of persons were wrongly convicted in England in the 1970’s and imprisoned, some for over 16 years, before their convictions were quashed. I recall a saying that: “The reason the sun never set on the British Empire was because God did not trust the British in the dark”.

Of course, that is unfair to the great British contribution to legal systems across the globe, but one can respect and appreciate, as I certainly do, the positive contribution of the British, and the Privy Council in particular, to global jurisprudence and still feel strongly that we in the Caribbean can and should now fully operationalize our own indigenous apex court, as we are best suited to judge ourselves. After being politically independent for the past 50 years in the case of Jamaica and Trinidad & Tobago, 40 years for The Bahamas and 30 years for little but tallawah St. Kitts & Nevis: what are we waiting for?

How to constitutionally replace the Privy Council with the CCJ

Section 38 of our Constitution suggests that the simplest and most practical way for St. Kitts & Nevis to replace the Privy Council with the CCJ would be:

(a) for a Bill to be passed in the National Assembly with the support of not less than two-thirds of the elected members of the Assembly, after an interval of not less than 90 days between its first and second readings; and

(b) for our Government to enter into an agreement with the British Government for ending appeals to the Privy Council, in order to make the CCJ our final appellate court.

As an alternative to such an agreement with the British Government referred to in (b) above, a referendum would be necessary in which two-thirds support of the popular vote within each of the two Islands is obtained for the said Bill. Referenda experiences in Nevis and in St. Vincent indicate that for such a referendum to be successful, the support of the parliamentary Opposition both in St. Kitts and in Nevis would be required.

In some OECS countries (Antigua & Barbuda and Grenada), a referendum is constitutionally mandatory, but others (Dominica, St. Lucia and St. Vincent & the Grenadines) appear to have constitutional avenues that are similar to St. Kitts & Nevis.

The Real Record

In most of the celebrated Privy Council cases, at least one Caribbean judge in the courts below ruled or reasoned to the same effect as the Privy Council, so clearly the Privy Council has no monopoly on justice.

We must not allow the inaccurate, irresponsible and self-serving comments of a couple of our disappointed, and disappointing, politicians to cause us to forget that Caribbean judicial giants have made outstanding contributions throughout the region and the wider world. I will mention but a few such contributions from just our little corner of the Caribbean.

The late OECS Chief Justice The Right Honourable Sir Vincent Floissac of St Lucia served as a judge in the Seychelles and also authored judgments as a member of the Privy Council. Another former OECS Chief Justice, our very own illustrious son of the soil, The Right Honourable Sir Dennis Byron (now CCJ President), and also a Privy Councilor, served as President of the UN’s International Criminal Tribunal for Rwanda.

The Right Honourable Professor Telford Georges OCC, of Dominica (now of blessed memory) was recruited away from the Trinidad Court of Appeal by no less a leader than H. E. President Julius Nyerere to serve for over six years as Chief Justice of Tanzania. Prof. Georges was Dean of the UWI Faculty of Law when I was a student there and his integrity and immense intellect made him an obvious pick for the posts of Chief Justice of The Bahamas and also Chief Justice of what was then the newly democratic nation of Zimbabwe.

His biography makes it clear that he accurately assessed the character of President Robert Mugabe and shortened his stay there. Thus he cannot bear any responsibility for Zimbabwe under Mugabe today. So the Caribbean’s judicial talent has been recognized and embraced in the Motherland and other far-flung places for decades, but we seem to permit partisan politics to blinker us from seeing and supporting the good in our own jurists.

Time for Action

As was articulated by the West Indian Commission in its 1992 Report, Time for Action:

“We believe a Caribbean Supreme Court manned by distinguished West Indian jurists and in which litigants have confidence, is likely to attract a larger number of appeals from countries of the Region than the Privy Council now does. Its knowledge and understanding of regional problems, language, and culture, coupled with its identification with the very ethos of the Caribbean Community … invests it with intrinsic qualities which the Privy Council, despite its great learning, does not and can never hope to possess. The importance of these attributes in the judicial law-making process is not to be overlooked or underestimated.”

As a special outreach to any of our politicians who need to hear from Englishmen, let me also quote the Right Honourable Lord Brougham, a former Lord Chancellor of Great Britain and a Privy Councilor described as one who helped to put the Privy Council on its modern footing. In 1828 he said of the Privy Council:

“It is obvious that, from the mere distance of those colonies and the immense variety of matters arising in them, foreign to our habits and beyond the scope of our knowledge, any judicial tribunal in this country must of necessity be an extremely inadequate court of redress ….”

Of more recent vintage, writing in The Journal of International Economic Law in 2008, Prof. Sir Francis Jacobs PC, QC, KCMG, another Englishman, Privy Councilor and former Advocate General of the European Court of Justice, had this to say:

“A supreme court of high calibre has been established in the Caribbean which would be able to take account of local values and develop a modern Caribbean jurisprudence in an international context. It is regrettable that political difficulties have obstructed acceptance of its [appellate] jurisdiction and that the outdated jurisdiction of the Judicial Committee of the Privy Council survives ... for many of those States. All possible steps should be taken to encourage the Caribbean States to accept the [appellate] jurisdiction of their own supreme court..."

Caribbean citizens today would be well-advised to urge all of our Governments and Opposition politicians to “free their minds” and have the confidence to grasp the glorious opportunity of our generation and embrace the CCJ fully, for the benefit of ourselves and our future. No final appellate or Community Court will be crafted in the Caribbean with better institutional independence, socio-economic relevance and accessibility in this generation, or indeed the foreseeable future. Better has come: Let us recognize the CCJ as such and seize the day with pride as a people!