Tag: caribbean court of justice

Rahym R. Augustin-Joseph (Mr.) (Guest contributor)

Overtime, there has been a discernible increase in the denial of entry or even banning of certain dancehall and Trinibad artists, who were scheduled to perform in Caribbean countries in 2024 such as K-Mann 6IXX in Antigua and Barbuda and DJ Punz in St. Kitts and Nevis.    

Earlier, in 2022, Skeng was denied future permits for any show he was scheduled to have in Guyana, after the Baderation event he had, was disrupted by gunfire and bottles turned missiles. In response, the Guyanese Government therefore noted that they would no longer issue permits to skeng or other artists whose lyrics included violence and public disorder to perform in Guyana. In 2024 however, it appears that this position was reversed as Skeng performed in Guyana.

But these refusals and banning of artists from other Caribbean countries is not a new phenomenon, as in 2014 Jamaican artiste Tommy Lee Sparta, or Cabral Douglas was denied entry into Dominica, where he was supposed to perform, but it raised concerns for public safety. In 2010, Vybz Kartel was issued a performance ban in Saint Lucia and Barbados, citing his lewd lyrics and raunchy performances, and in 2009, Bounty Killer was also denied entry into Trinidad and Tobago, allegedly without reasons, while Vybz Kartel his reputed rival was allowed to enter and perform. There are many more examples of the denial of entry and banning of artists in the Caribbean.

On the one hand, a wide cross section of the Caribbean peoples listen and engage with the music of these artists, and see it is a citadel of modern Caribbean culture. However, political leaders and technocrats have noted that these artists and their music are in the main, vulgar, misogynistic, crude, and have a major influence in the increased crime and violence in our society. It is their view that this music is contributing towards the increase in gang recruitment and violence, as people continue to be influenced by the lyrical component and call to action elicited by this music. Young people are therefore not seeing this music for its ‘creative expression’ but instead seeing this music for its literal meaning.

One only has to listen to the words uttered by Dr. Mohamed Irfaan Ali of Guyana, when he noted during the 46th Regular Meeting of the Conference of the Heads of Government of CARICOM. He urged leaders to prevent the proliferation of violent music in their respective nations. “We do not need lyrics that promote violence in this region, We have the ability to promote positive lyrics that inspire people to think, act, and behave positively. As leaders, we must take this matter seriously and ensure that the region’s lyrics reflect the positivity embodied by Bob Marley and encourage positive living and change.”

This debate however is to be had at another time, and within our respective countries, wherein one can examine properly whether the music which portrays violence has been having an effect on the perpetrators of violence within the Caribbean, such that if it is reduced, curtailed or banned across various mediums, that it would reduce violence significantly. This is a task for researchers across the region, which political leaders must take their cues from if they are to sustain such an argument.

But, beyond just the consumption of the music by nationals in the respective Caribbean countries, it is also being packaged and sold through concerts and other mediums across the Caribbean. As such, the banning and denial of entry of the artists has effects on trade in services, and also possibly implicates regional integration law of which will be discussed briefly here.

So, how is the banning and denial of entry of artists to ply their trade within the Caribbean a regional integration law problem?

As you may be aware, every CARICOM national has an automatic right of entry and stay within another CARICOM country for a maximum of 6 months pursuant to the 2007 Conference Decision of the CARICOM Heads of Government, Article 45 of the Revised Treaty of Chaguaramas, and the seminal case of Shanique Myrie v. The State of Barbados. This automatic right must also be hassle free, or without harassment or the imposition of impediments. Beyond just the mere right of entry, cases such as Tamika Gilbert v. The State of Barbados also notes that the right extends to being able to move freely within the particular country without any harassment and impediments.

In restricting such right however, the offending state can only do so on two strict and narrowly applied grounds i.e., if the individual is an undesirable or a charge on public funds. Under the first prong, the offending state must show that the individual presents a genuine, present and sufficiently serious threat to national security and safety, public morals, and national health of the member state affecting one of the fundamental interests of the society. So, individuals who actually pose or can reasonably be expected to pose such a threat. It is interesting however, that the cases from the European Court of Justice also suggest that one cannot refuse an individual of another state to one’s territory by reason of or of the threat of conduct which when attributable to their own nationals, do not give rise to repressive measures or other genuine and effective measures intended to combat such conduct. One must show essentially that their own nationals who engage in the behaviour which is refused are prosecuted regularly or otherwise subjected to some legal action.  This begs the question of whether the states which have denied entry and banned artists altogether, have similarly banned local artists which share similar lyrical content in their songs?

In the latter, one must show that the individual does not have sufficient funds, such that they will become a charge on public funds, wherein they do not have sufficient monies for the duration of their visit, lack possession of online cash and card among other considerations. Further, when refusing an individual, there are certain procedural elements that the offending country must satisfy, which include inter alia, that they must (I) inform the individual in writing why they are being refused entry, (II) state the reasons why they are refused entry (III) provide them with the right to challenge such decision, through an effective appeal or review procedure with adequate safeguards to protect the rights of the persons denied entry and (IV) allow them the opportunity to consult with an attorney or their consular official of their country.

The probing questions is therefore whether reasons have been given to these artists justifying their performance ban, how long are these measures in effect and is there is a review mechanism for these artists to allow them to appeal against the performance ban and what do these review mechanisms look like. These are according to Dr. Waite, “serious legal and policy questions that have implications for our regional integration movement, cultural exchange, vibrancy of socio-political commentary and our community rights. In order to answer them, a probing review is necessary, not a knee-jerk emotional and moral response.”

However, the right which the refused artists will be captured under is the Article 46 right, which is where community nationals who are skilled nationals are able to travel freely across the region to ply their skills upon attainment and presentation of their CARICOM Skills Certificate. As such, the artists or musicians should be able to travel to any CARICOM state, hassle- free, without any impediments or harassment for a period of 6 months.

Should the abovementioned artists have their CSME Certificate, which is attained by artists after they provide, (I) copies of their portfolio work which include pictures, videos, news, reports, examples of their work, (II) letters from their previous employers which state the period of employment and a job description- which is a bit problematic of a criteria, recognising the entrepreneurial nature of most of our artists and their engagement in the gig economy, (III) letters of reference from previous individuals attesting to work previously and (IV) five invoices dated within the last six months. However, the artists can only enjoy such right of freedom of movement with the acquisition of the CSME Certificate which would validate their status as a skilled national.  As such, on a prima facie level, the banning of artists and the denial of entry into certain countries within the Caribbean already has affected and infringed on their community rights as a CARICOM citizen, wherein they can receive redress before the Caribbean Court of Justice in its original jurisdiction.

Of course, any state, which has banned the artists who had upcoming and scheduled performances and shows in their respective countries if challenged would argue that these artists can be classified as ‘undesirables.’ As such they would argue that these artists represent a genuine, present and sufficiently serious threat to their national security, safety, and public morals, and they affect one of the fundamental interests of society. Their argument would possibly be that these artists by virtue of their lyrical component of their music could or have elicited violence in their respective countries, especially with increasing crime and violence statistics and as such is a threat to the national security. Further, they may argue that the lyrics of the artists may also be against public morals, particularly violent music which encourage gun violence. Recognising that there has been no cases within the region which have touched and concerned the exceptions, with regards to the nexus of violence and national security and public morals, one has to look towards the European Court of Justice jurisprudence, which the CCJ would look to.

Within the ECJ, Catherine Barnard in her text, The Substantive Law of the European Union, Four Freedoms has noted that, the court grants member states a certain latitude and margin of discretion to determine what constitutes national security or public security in light of the national circumstances. It would therefore vary from one member state to another as noted in Van Duyn v. Home Office [1974]. Moreover, the courts provide the relevant national authorities an area of discretion within the limits imposed by the treaty, particularly as it does not provide a uniform set of values related to conduct which may be considered contrary to the national security interests of a country. However, the court still maintains its overarching view that there must be a genuine and sufficiently serious threat affecting the fundamental interests of the society.

However, the court has noted in Shanique Myrie, which is a slight departure from the abovementioned, when they noted that public policy cannot be used as a justification for derogation from the fundamental principle of freedom of movement and hassle-free travel of community nationals wholly or unilaterally be determined by each member state without being subject to control by the major community organs, in particular the conference and ultimately by the court as the guardian of the RTC.

The unfortunate or fortunate thing about the law and the decision by the court is that it forces a ‘culture of justification’ as coined by the South African public law scholar Etienne Mureinik, albeit post-law and decision making, wherein our officials must justify their decisions utilising evidence, logical reasoning as the court does not provide a carte blanche to the decision maker, which is critical for policy making and decision making. While members of the public may see it as being heavy handed, Article 211 of the RTC, provides the CCJ with this exclusive and compulsory jurisdiction to interpret and apply the RTC.

As such, questions which have been posed by Dr. Neto Waite, on this subject are instructive and worthy of repetition here, when he asked whether it is right to argue that salacious lyrics undermine public morality and national security, is it true that lyrics about violence and rebellion against government harm public order? Has it ever posed a serious and sufficient risk and if so what does such intelligence tell us? Is the performance ban the best mechanism to deal with it, is it not too draconian and shouldn’t adult concertgoers be left to decide for themselves what sort of lyrics they wish to enjoy? In addressing whether the concern is minors being exposed to such music, he also argues correctly, whether it would be more appropriate for the government In consultation with civil society, implement a parental rating system for concerts based on the lineup of artists which can protect minors and respect the agency of adults to determine what types of music they want to listen to.

However, from the reports in the media, it appears that save and except for Tommy Lee Sparta or Cabral Douglas, of which the CCJ has ruled on, the artists are not being denied entry after they have attempted to enter the respective countries. Instead, they are being banned from before. This does not mean they are not captured under the abovementioned. It just means that existing domestic Immigration legislation is being utilised to preclude entry which has been addressed in Maurice Tomlinson v. The State of Belize and Trinidad and Tobago. The court has therefore noted however that the mere existence of incompatible legislation, which suggests that there are categories of individuals who may not be eligible to enter the respective country, without it being harmonised with community law is not ipso facto, incompatible. Instead, the court will assess the state practice of the particular state to decide whether the legislation is incompatible with regional integration law.

Therefore, this denial and banning of dancehall and trinibad artists would be assessed on a country-by-country basis in order to assess whether the individual country has a history of banning of dancehall and trinibad artists, which would be determinative of the legislation and state practice being incompatible. As such, countries such as Guyana, St. Kitts and Nevis among others may be found inconsistent, and the artists can make a claim even prior to entering that they will be denied entry, because of the legislation and also the application of the legislation with the banning of the artists. The artists would therefore have a claim before the CCJ in its OJ.

However, CARICOM countries should take heed of the warning of the CCJ, who noted in Maurice Tomlinson, “that the court does not condone the indefinite retention on the statute book of a national law which in appearance seems to conflict with obligations under Community Law, and member states must ensure that national laws, subsidiary legislation and administrative practices are transparent in their support of the free movement of all CARICOM nationals and there should be harmonisation of the legislation with Community Law. If there is any permanent or indefinite discord between administrative practices and the literal reading of the legislation, then the rule of law requires clarity and certainty especially for nationals of other Member states who are to be guided by such legislation and practice.”

Another right of the Artists, which may be affected is the right to not be discriminated on the grounds of nationality, as per Article 7 of the RTC. Essentially, in refusing entry to the artist, the offending state cannot discriminate on the artist solely on the basis of their nationality. Essentially, the artists must therefore show that similar individuals i.e., individuals who sing music similar to them have not been denied entry and that these individuals have no separate distinction other than their nationality. The unfortunate hurdle that they will face however is the high and unreasonable evidentry burden, as noted in Shanique Myrie v. Barbados, where the court noted that to show discrimination one has to show that there is statistical data which shows discrimination against the particular nationality that the individual artist has come from. It does not allow discrimination to be seen on a case-by-case basis, with the evidence being solely attributed from the particular case.

The last right however which may affect the artist is the right to provision of services under Article 36 of the RTC, which is connected to the right to freedom of movement as noted in Shanique Myrie v. Barbados. Cabral Douglas v. The State of Dominica notes that an individual can be a service provider, if they satisfy condition precedent in Article 36 which is that (I) it must be within an approved activity in an approved sector, which music and performances are, (II) It must be supplied cross-border, which is satisfied as the artists are moving from one country to another. This would be different from Cabral Douglas, which has been critiqued, where the court held that he could not show that he was providing services because he was from Dominica attempting to provide services in Dominica and therefore the cross-border element was not satisfied. Thirdly, the element of temporary nature will be satisfied as they are travelling for a concert or some other performances which would be temporary. Finally, there must be renumeration as they are going to benefit from the payment by the patrons among other forms of income arising from the concert.

Recognising the above, it would be advisable that these artists troubleshoot their cases in the OJ of the CCJ in order for the court to provide a definitive ruling on this matter, to guide or instruct states as to how to treat with these artists as a collective, ensuring state decisions are compatible with community law, as individual states believe they may be affecting their public morals, national security among other fundamental interests of the society.

This is particularly opportune as there are further promises to increase freedom of movement in the region. The region cannot continue to address these matters in isolation and also ignore the trade and possible incompatibility implications of the individual countries with the RTC.

Rahym Augustin-Joseph is the 2025 Commonwealth Caribbean Rhodes Scholar. He is a recent political science graduate from the UWI Cave Hill Campus and an aspiring attorney-at-law. He can be reached via rahymrjoseph9@ gmail.com and you can read more from him here.

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