While most Guyanese might have been focused last month on the CCJ’s judgment in its appellate jurisdiction in the Mohameds’ extradition case, there was another matter before the Court in its original jurisdiction that could also have far reaching implications for Guyanese and indeed, other CARICOM nationals. The case in question, for which an application for special leave by a CARICOM national was granted, is Tonya d’Almada v Trinidad and Tobago, Jamaica and CARICOM.
It should be noted that the successful application by a national for special leave is not indicative of the Court’s view on the merits of the application; rather it is that in the opinion of the Court, the application raises questions of Community law that are important enough for the Court to hear arguments on the merits by the parties, in order to bring clarity and make a determination on them.
As stated on the CCJ website, ‘the claim concerns the alleged unlawful sharing, storage, and utilisation of the Applicant’s personal information relating to a dismissed criminal charge, which she argues has impeded her right to freedom of movement’.
In brief, Ms. d’Almada alleges that information about a 2016 narcotics-related matter was shared with IMPACS, the CARICOM regional security agency, but was not updated when the matter ended with her acquittal in 2020. She subsequently travelled to Jamaica with a group and the Jamaican authorities, acting on the outdated, inaccurate information that had been shared by IMPACS on a “watch list” to other Member States, singled Ms. d’Almada out. She was subjected to what she alleges was “non-routine border treatment”, namely an embarrassing secondary interview and extended interrogation related to her criminal past, and unnecessary delay. Upon verification of the true state of affairs, Ms. D’Almada was subsequently granted leave to enter Jamaica.
The Court recently decided another case which shows its willingness to expand how the right to free movement by CARICOM nationals is construed: in Derek Ramsamooj v Suriname, it held that the rights in the Revised Treaty afforded to Derek Anand Ramsamooj, a Trinidad and Tobago national, were breached when he was denied access to a lawyer during pre-trial detention in Suriname. Ramsamooj was detained in October 2020 under two consecutive eight-day restriction orders under Suriname law; besides suffering a coronary event, a stroke, and worsening coronary artery disease, he remained in detention until December 22 2020, and was only released because of the deteriorating state of his health. His passport was not returned until September 2022. The Court found that a confession obtained during the unlawful detention could not be relied on as it was in breach of Community law; Ramsamooj was awarded US$30,000.
The d’Almada case currently before the Court is unlike the 2013 Shanique Myrie case, in which a Jamaican national was detained in Grantley Adams airport in 2011, subjected to a demeaning body cavity search and denied her right to an automatic stay of six months, as had been decided by the Conference of Heads of Government in 2007, in furtherance of the free movement commitment in Article 45 of the Revised Treaty of Chaguaramas.
However, given the expansionist view that the Court recently took in the Ramsamooj case, it will be interesting to see whether in the d’Almada case, the right to “hassle-free travel” and free movement would include prohibiting extended questioning and inordinate delay by immigration officials of a Member State, even in circumstances that do not meet the relatively high threshold of mistreatment as the unfortunate Myrie case. Is it that any fetter whatsoever by a Member State – be it unreasonable, prejudicial, embarrassing – on the exercise of the right to free movement by CARICOM nationals, would constitute a breach of that Member State’s obligations as a member of CARICOM?
In the last few days, Suriname authorities have unilaterally decided that the M.V. Canawaina must be temporarily withdrawn from providing service between Guyana and Suriname, causing unanticipated delay, expenditure and hardship to travelers. Information available states that maritime experts from both countries had conducted technical inspections and submitted written reports that the ferry service could continue until the scheduled dry dock within the next three months. However the Maritime Authority in Suriname (MAS) ruled otherwise, insisting that some maintenance works be done immediately.
It is true that the official position based on historical agreements in the last century between Great Britain and The Netherlands, which were never finalized, is that the Corentyne river forms part of the territory of Suriname. To that extent, Suriname exercises sovereignty over the Corentyne river and the MAS would be the legitimate body to oversee seaworthiness of vessels plying the river. However the Corentyne river is a border river and international law recognizes certain “rights of user” for the riparian states, including the right of its nationals to travel, trade and transport goods and produce along the waterway.
Comity and good neighbourly relations would therefore require the MAS to maintain an adequate planning and maintenance schedule, with clear timelines and notifications, in consultation with the Ministries of Foreign Affairs and Public Works in Guyana, in order to avoid sudden disruptions to the ferry service and inconvenience and hardship without prior adequate notice.
Moreover in the development of the body of Community law which is binding upon Member States by their adherence to the Revised Treaty, it is submitted that the unilateral suspension by Suriname of the ferry service across the Corentyne river would amount to a fetter on the right to free movement of Guyanese and indeed all CARICOM nationals exercising this right from the land territory of Guyana to that of Suriname. The same would equally be true for CARICOM nationals traveling by ferry from Suriname to Guyana.
Looking further down the road (or across the river, for that matter), it will be recalled that Ministerial statements were recently made in the Parliament of Suriname to the effect that the proposed bridge over the Corentyne river would be financed, built, regulated and operated by our neighbour to the East. If the operation and maintenance of the Canawaima ferry service is anything to go by, could we expect the Government of Suriname to unilaterally shut down traffic on the Corentyne bridge, for reasons of maintenance, or national security, public health, food safety, sanitation…whatever?
It is in this context that we should await the decision in the d’Almada case with interest, to see if the Court would continue to apply a liberal approach to the enjoyment of the right to free movement of CARICOM nationals at ports of entry. Did Trinidad and Tobago owe Ms. d’Almada a duty of care to ensure that outdated information that had previously been shared with IMPACS was updated and accurate? Was IMPACS under any obligation to verify the accuracy of and make current the information that it uploaded into its system to be shared with other Member States? Is Jamaica liable if it based its actions as per normal, on the usually reliable information it has been receiving over time from IMPACS in its “watch list”? Does the subsequent approval of Ms. d’Almada’s entry into Jamaica amount to the enjoyment by her of the right to free movement?
The cases to date have all taken place at ports of entry in Member States that do not share borders; the question would arise therefore whether it would amount to a curtailment of the right to free movement, if a CARICOM national presents himself at a port of exit at a border crossing in a Member State and the means of transportation to effect such a crossing to a port of entry in a neighbouring Member State, has been unilaterally restricted by the latter Member State. Obviously, this cross-border situation is only relevant to Guyana and Suriname, but the continuing elaboration by the Court of the parameters of the right to free movement would be of relevance to the evolution of a corpus of Community law on the Article 45 Treaty right.
In the spirit of comity, good neighborliness and regional integration, Guyana and Suriname should initiate consultations to come to firm, binding arrangements regarding both the Canawaima ferry service and the law and policy that would apply on the planned bridge over the Corentyne river, confident that the CCJ is available, if need be, to provide clarity on the extent to which the right to free movement of CARICOM nationals in these two travel situations is to be construed.
Discussion