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Insight: The Presumption Of Innocence

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Attorney Fred Smith QC

By FRED SMITH, QC

Former Immigration Minister Fred Mitchell’s (PLP) November 2014 immigration policy explicitly targets people who are already here legally; not people who have violated the Immigration Act. The focus was on people being “documented”, “regularised” and having “papers”; not on whether they broke any laws. Having just come to office, Brent Symonette (FNM) seems intent on blithely continuing this heresy.

Despite the countless criticisms levelled at President Trump, particularly on immigration, at least he is not rounding up, abusing, indefinitely detaining in camps and/or deporting people born in the USA and entitled to US citizenship. Mitchell and Symonette are doing just that to innocent people born in The Bahamas and entitled to Bahamian citizenship. They have out-trumped even Trump!

Excepting for the moment discussions about migration generally, I understand the political and legal arguments for humanely preventing illegal immigration into The Bahamas and, by due process, for prosecuting and deporting those who are here in contravention of the law. Fred Mitchell did not have to invent and declare a policy for that in November 2014, because it was already the law.

In fact, the November 2014 policy was specifically designed to target people who were born in The Bahamas to foreign parents but who weren’t considered “regularised”, because they didn’t have a certificate of citizenship or a Belongers Permit (which Mitchell invented as “policy” even before Parliament passed the 2015 Amendment to the Immigration Act). Even the May 2015 Amendment did not make it obligatory for Citizens in Waiting to have to get a Belongers Permit in the meantime.

Thankfully, Mitchell did not succeed in getting Parliament to pass a law requiring every person (Bahamians included) to register, obtain and carry a National Identity Card on them at all times. This was similar to Sir Arthur Dion Hanna’s (PLP) attempt at the Bahamas Constitutional Conference in London in 1972 to include an Article in the Constitution preventing inter-island travel by Bahamians without a domestic visa. All such restrictions are fundamental violations of every person’s right to freedom of movement as defined by the Constitution and should be vigorously resisted by all right-thinking Bahamians.

Mitchell was however, able to turn his discriminatory guns on those born in The Bahamas to foreign parents but who did not have a document saying they were Bahamian – despite the fact it was the Department of Immigration (DOI) which was woefully inefficient and corrupt in processing thousands of outstanding applications. He was only able to do that by “policy”, in other words, an imaginary system of unjustifiable rules that has no basis in law. He chose this route because he knew it would have been unconstitutional for Parliament to pass any such legislation. Might became right!

Mitchell’s November 2014 policy and his political double-speak tragically conflated and blurred the distinction between persons who had arrived and overstayed, or who were working here illegally, with the 25,000–40,000 peoeple born in The Bahamas to foreign parents since the 1950s but who do not have a paper evidencing their “status”. In one fell policy swoop, Citizens in Waiting and migrants (who may have broken immigration laws) were lumped together and treated as “Illegals”.

Mitchell then systematically targeted the weak, defenceless “undocumented illegals”, a category that included anyone born in The Bahamas to foreign parents but who was not “regularised” (a term unknown in the law). That was when innocent children were banned from public education and the frenzy of illegal raids, exercises, round-ups, home invasions, bulldozing of shanty towns, detentions and deportations began. He had a ready-made base of helpless victims to abuse.

Mitchell started it. Now Brent Symonnette is continuing the illegal strategy of doing indirectly through policy what they could not do legally and directly through Parliament. This is why hardly any of the thousands and thousands of people who have been arrested and detained over the last three years have been taken before a court of law, charged with an offence, tried and/or convicted and sentenced.

Simply put, those being targeted have not broken any law; they have committed no criminal offence. Their only crime is being of foreign descent in a country where xenophobia and bigotry is rife and encouraged by political leaders of all stripes. And according to the United Nations, expelling individuals from a country only because of their ethnicity qualifies as ethnic cleansing.

Why did Mitchell invent this heinous policy? Didn’t the DOI have enough work to do? Weren’t there enough people coming in or working illegally? Did the government need a scapegoat to blame for its inadequacies and failures, in particular a 25–37 percent unemployment rate? Was it easier to just point a finger at the “illegals”, i,e, people in The Bahamas (whether they were innocently born here or illegally entered?). Let’s be honest. This policy was targeted at poor, politically disenfranchised black people born in The Bahamas of Haitian descent.

Ninety percent of the people who are arrested and detained are born here but simply don’t have a piece of paper saying they have citizenship or any other “document” deemed acceptable to Immigration on a whim. Ironically, nobody born in or out of The Bahamas to Bahamian parents has a piece of paper saying they are a Bahamian citizen. I challenge Fred Mitchell and or Brent Symonette to prove me wrong.

There is no law that requires anybody to have any kind of document to prove they are a citizen of The Bahamas. It used to be a sufficient insignia of citizenship to produce a birth certificate but Fred Mitchell even did away with that sensible reality. This policy even prevents Citizens in Waiting from getting a birth certificate for their children born in The Bahamas; effectively preventing the creation of an official state record of the existence of the 2nd generation of Bahamians of Haitian descent. Not only are the parents stateless; the children do not even officially exist!

For years, I criticised the actions of the DOI and identified the laws they have been breaking. Yet, no Attorney General nor Minister of Legal Affairs (Allyson Maynard Gibson QC, Damian Gomez QC, Carl Bethel QC or Elsworth Johnson); no Minister of Immigration (Fred Mitchell or Brent Symonette), and no Director of Immigration (William Pratt) has ever identified a law entitling them to do what they are doing or showing how I am wrong. Indeed, every Habeas Corpus motion I have filed on behalf of those illegally detained has succeeded without a fight.

So this entire charade from November 2014, which has tragically affected so many lives, has been about making people have “papers”, or “documents” or become “regularised”; instead of focusing on using the financial and human resources of Immigration and the Defence Force to patrol the borders, prosecute offences under the Immigration Act, prevent illegal migration, process the thousands of applications of Citizens in Waiting, or indeed to reform our Immigration laws.

This revolving door of arrests, detentions and releases of course continues to grease, at $2,500 a pop, the corrupt wheels of Immigration. The DOI has no interest in processing the thousands of outstanding applications. It’s far more profitable to keep these people as Citizens Waiting.

Indeed, Prime Minister Minnis’ “Get Out by December 31” Edict was prefaced by the injunction that people should get their papers straight and regularise themselves by the end of the year or risk aggressive immigration action and deportation. It did not focus on declaring aggressive prevention and prosecution of immigration offences, according to law. It was a reaffirmation of the Mitchell Heresy which Director William Pratt couldn’t even wait until January 1, 2018, to launch with rabid zeal.

So all of this business about getting papers straight is not really about preventing illegal immigration; once again it is form over substance and picking on a huge number of people who are politically and financially weak, against whom it is easy to whip up patriotic and nationalist fervour by seeming to be tough on immigration and appearing therefore to be actually doing something constructive, while the economy collapses around our ears.

In November 2014, the FNM proclaimed it “stood shoulder-to-shoulder” with the PLP, once again just to show the FNM was as tough on “Illegals” as the PLP. So what Mitchell did through his policy, which is still being pursued by Brent Symonette, is to make it seem as if it is illegal NOT to have “papers”.

Well, “Attention! Attention! Immigration! Fred Smith does not have a Certificate of Citizenship that says Fred Smith is a Bahamian citizen”.

Ironically, I was born in Haiti. I can’t wait for some Immigration officer to pick me up and ask me for papers. I certainly will not be a “nice” person; which according to Brent Symonette last week, is the new litmus test by which Immigration is entitled to target me aggressively and abusively. If I’m “nice”, they will leave me alone, otherwise I will be detained! What a load of crock, Symonette!

The 2014 policy which requires people to have papers or risk illegal arrest, indefinite detention and deportation is a reflection of the insensitive and dictatorial mentality of people like Fred Mitchell who just cook up a policy one morning; and people like Brent Symonette, who unquestioningly adopt it like simpletons the next morning.

I repeat without fear of contradiction, that it is not an offence under the Immigration Act not to apply to be registered as a citizen. It is not an offence for a person who is born in The Bahamas of foreign parents, to get a birth certificate for themselves or their children, work, get a bank account, get a business licence, go to school, etc. This is why I keep hammering away at the fact Mitchell’s Heresy has turned the presumption of innocence and the right to freedom upside down in The Bahamas.

Because of Fred Mitchell‘s dictatorial penchant, a person is now presumed to be guilty of breaking a law that does not exist. Mitchell and now Symonette have effectively made it illegal for you to be born in The Bahamas of foreign parents (particularly from Haiti). That is the amazing new immigration offence.

Fred Mitchell and Brent Symonette are responsible for the perverse, absurd, surreal, humanly tragic, Alice in Wonderland country that The Bahamas has become. They have illegally disrupted the lives of thousands of innocent, law abiding people. They have hurt, degraded, brutalized, abused, victimised, expelled and treated them so badly they should both be forever banished from the political stage. Mitchell is the anti-Christ of democracy and Symonette, his acolyte, is blindly following in his footsteps!

It is illegal and wrong to abuse innocent people by policy instead of affording them due process and respecting their rights according to law. Mitchell and Symonette have out-trumped even Trump!

I call on Mitchell to resign as Chairman of the PLP and as a Senator. I also call on Symonette to resign as Minister of Immigration and as a of Member of Parliament. Both these men are too dangerous to be anywhere near power.

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