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Last Updated: Feb 13, 2017 - 1:45:37 AM |
Smith (right) and his legal team leaving court. The GBHRA president won several cases
in the 1980s in which current immigration enforcement tactics were pronounced illegal.
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Human rights association accuses party leader of condoning illegal tactics, betraying core principles, and pandering to prejudice in a bid to attract votes
In supporting the government’s new immigration “Gestapo tactics”, the Free National Movement (FNM) has abandoned its core principles in what amounts to a cheap vote-getting stunt, according to Fred Smith, QC.
Smith, president of the Grand Bahama Human Rights Association (GBHRA), charged that the “illegal, immoral and unconstitutional” raids and roundups currently underway go against everything the FNM is supposed to stand for.
“Former leader Sir Cecil Wallace-Whitfield must be turning in his grave,” Smith said. “His FNM stood against victimization, racism, xenophobia, hatred and discrimination. It stood for constitutionally protected freedoms, due process and the rule of law.
“Sadly, it seems today’s FNM leadership is more interested in pandering to the most base, bigoted and narrow-minded elements of this society, in a cheap effort to attract more votes.”
In a statement issued on Wednesday, FNM leader Hubert Minnis said that while the party considers the preservation of human rights to be “a paramount concern” it nevertheless supports the government’s severe new policy, calling it “right” and in the long-term interest of The Bahamas.
Minnis said that while the FNM had been “apprised of some concerns”, with regard to enforcement methods, inquiries confirmed that immigration officers have conducted themselves “with the highest levels of professionalism and sensitivity”.
Denouncing these remarks, Smith said that immigration officers must necessarily be acting illegally, as the new policy itself obviously and demonstrably violates the Constitution of The Bahamas, the supreme law of the land.
The preamble of the constitution, he noted, recognizes that the preservation of freedom must be guaranteed by an abiding respect for Christian values and the rule of law.
Smith said: “Chapter 3 of the constitution outlines the fundamental rights and freedoms. Article 15 declares that every person –and not just Bahamian citizens or those who entered legally, but every single person within this jurisdiction – is entitled to those rights and freedoms, and to the protection of the law, regardless of that individual’s race, gender or place of origin.
“Such a person also enjoys constitutional protection for the privacy of his home and property, as well as from deprivation of that property.
“Raids in the dead of night are therefore illegal. Roadblocks are illegal. Demolishing peoples homes is illegal.The Limitation Act dictates that people who take adverse possession of property for over 12 years are entitled to own the property.
He noted that Article 17 of the constitution declares that "no person shall be subjected to torture or in human or degrading treatment or punishment”.
“So, even if the law provided for raids or arbitrary detention, or mandated a show of identification to prove status, etc., those laws must still be enforced in a way that is not dehumanizing or degrading. But in any event, as it stands today, a justification in law simply does not exist for what the Immigration Department is doing.
“People cannot just be stopped, detained and deported at the whim of the minister or director of immigration. For someone to be expelled, a deportation order must be signed and due process followed.”
Outlining due process according to the constitution, Smith said Article 19 [2] provides that “any person who is arrested or detained shall be informed in the language he understands for the reasons for his arrest and detention and shall be entitled to legal representation"
“Then, the constitution says, that person must be brought without undue delay before a court – not held in indefinite detention like at Guantánamo Bay.
“And there is no law that provides that anyone is required to prove their legal status in the Bahamas.That is because Article 21 says every person is presumed to be innocent until he is proved or pleaded guilty.
“This is another reason why arbitrary roundups and checkpoints are illegal and unconstitutional.”
Smith, who has been at the forefront of the struggle to defend human rights in The Bahamas for more than three decades, said these issues were already death with by the courts in a series of cases he successfully argued in the 1980s.
“For example, in Smith versus the Commissioner of Police (1984), I sued the government and got the Supreme Court to declare roadblocks unconstitutional. They should not be taking place to day – for immigration purposes, as part of the fight against crime, or for any other reason. Its as simple as that,” he said.
Smith explained that Article 25 (1) of the constitution declares that "except with his consent, no person shall be hindered in the enjoyment of his freedom of movement, and for the purposes of this article this Article freedom means the right to move freely throughout the Bahamas.”
He said: “This freedom of movement is not restricted only to persons who can prove they are legally in the Bahamas, it applies to each and every person in The Bahamas.”
Article 26, he noted, declares that "no law shall make any provision which is discriminatory”.
“When it comes to immigration issues, discriminatory here refers to affording different treatment to different persons attributable wholly or mainly to their place of origin,” he said.
According to Smith, the authorities do have lawful means of detaining suspected illegal immigrants, but often fail to do so at the appropriate time and in the appropriate manner.
“Article 19 of the constitution says no person shall be deprived of his personal liberty save as maybe authorized by law. No person shall be deprived of his liberty except to prevent unlawful entry into the Bahamas.
“So they have every right to detain immigrants at the border, but because they have consistently failed to do their job for decades, for a variety of reasons, the now want to use that as an excuse to trample on fundamental rights. That is completely unacceptable,” he said.
“Again, once upon a time, the FNM understood and respected all this, now it seems they have come down with a severe case of amnesia, brought on by political expediency.”
“The GBHRA cries shame on the party for abandoning the protection of fundamental rights and freedoms, supporting discrimination, abandoning due process and conspiring with the PLP to terrorize the Haitian and Bahamian population.
“Make no mistake, this country is on a very slippery slope. Today we are legitimizing discrimination against alleged Haitians, tomorrow it could be any of us, or even all of us.”
“Today, those being terrorized into hiding or bullied out of the country are of Haitian origin – though in fact many of them already are or should be Bahamian citizens.
“Next, every person in the Bahamas will have to carry a certificate of identification to prove their entitlement to be here and prove they're not subject to being rounded up and taken off to some kind of detention center. Decades ago, The Bahamas was at the forefront of calling for an end to apartheid in South Africa. Now The Bahamas is adopting the Brutality of the Boers!
“This will start the ball rolling for more illegal roadblocks, more home invasions in the dead of night, etc.
“Soon, Bahamians will have to have a certificate from the value-added tax (VAT) authority or the real property tax authority or the business license tax authority before they can travel out of the country.
“There will be checkpoints at the airports and harbors, where they‘ll pull your records up on a screen, and if you haven’t paid all your fees and taxes, they will not allow you to travel. That is already part of the regulations for VAT.
“We have to be very careful here – this controversy is not about illegal immigration at all, but about who we are as a nation.
“This is exactly how it happens. How, by little steps, a country transforms from a constitutional democracy based on the rights and freedoms of the individual, into an authoritarian society where ‘might makes right’ and the people have no say. History is full of relevant examples.
“Discrimination and the abuse of power in all its forms must be rejected by all Bahamians. If not, before we know it, the terror we stood by and allowed to be visited upon the Haitian-Bahamian community will arrive at our own doorstep.
“Her Majesty’s Official Opposition should act as a foil to the government, not a mirror image.”
© Copyright 2014 by thebahamasweekly.com
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