By Frederick Smith, QC
Bahamians must begin to think of the fight to protect immigrant rights as part of a larger battle to defend the rule of law for the benefit of all who reside in this country.
This runs counter to the usual narrative about immigration enforcement. But the truth is the systematic violation of immigrants’ legal rights is symptomatic of a much larger disregard, by successive governments, of the constitutional protections that shouldbe enjoyed by each and every person in this country. When it comes to the victimisation of civilians by the authorities, it turns out Bahamians are in the same boat as immigrants.
What are the rights of suspected undocumented immigrants which are violated each and every day in The Bahamas? They are subjected to illegal raids, roadblocks, roundups and ordered to produce “papers” or else be detained. The roadblocks have been declared unlawful by the Supreme Court, yet they continue. Officers have no legal right to demand that anyone produce “papers” proving anything, yet this has become routine practice. Such actions constitute a direct violation of the constitutional right of freedom of movement and the right to be considered innocent until proven guilty in a court of law.
Immigrants are held indefinitely at the Carmichael Road Detention Center, an illegal facility – as even the former PLP Minister Fred Mitchell admitted. The Constitution states quite clearly it is not lawful to hold people without bringing them before a court, but this continues to be normal procedure in The Bahamas.
Their property is often confiscated, never to be returned, and during raids, front doors are kicked down and belongings left to looters once the occupants have been taken away. Thus, the property rights of these individuals are systematically violated.
Often, detentions are based upon the fact a person looks a certain way, is of a certain race, or because their last name sounds unfamiliar. Thus, their constitutional right to protection from discrimination is violated.
This is not to even mention the routine physical and sexual abuse to which immigrants are subjected, which quite clearly constitutes illegal assault, battery, rape, etc.
The inherent value of human beings
‘So what?’ say many Bahamians, ‘Immigrants or “Illegals” (whatever that means?) are breaking the law and therefore don’t qualify for these rights and protections. Constitutional rights are only for legal citizens and residents.
Nothing could be further from the truth. First of all, our constitution is the supreme law of the land, and any other law, policy or official procedure that clashes with it is by definition null and void. Take, for example the assumption that detainees have broken the law. Actually, the constitution states quite clearly they are innocent until proven guilty. Legally speaking, we deport people who have committed no crime on a regular basis.
Even if the government did take every suspected undocumented immigrant before the courts and secured convictions – as both the constitution and the Immigration Act demand – this still doesn’t mean their fundamental rights go out the window. Nowhere in the Constitution does it state the right to protection from lengthy detention, assault and discrimination is for citizens and residents only. There is no such thing as an “Illegal”. Nowhere does it say you have to enjoy some official immigration status to have a right to privacy, freedom of movement and the presumption of innocence.
The constitution is more than just a foundational law; it is a declaration of our moral and ethical duties as a nation to each and every human individual within our territory. It is, as such, a declaration that every person – citizen, resident, immigrant, public servant, rich man, poor man, hero, liar, murderer – has an inherent worth and certain inalienable rights, simply by virtue of being a member of the human race.
But few in The Bahamas see things this way. Our understanding of the concept of human rights remains at a woefully basic level. The moral and ethical parameters of our democracy, and what they imply about how we should regard and respect each and every individual, rarely if ever enter the conversation.
Right now, the rest of the world is moving to decriminalise undocumented migration and treat it as a humanitarian problem, recognising people who leave their homes are fleeing violence, starvation and total societal breakdown. Yet we in The Bahamas continue to treat such people, and those Citizens in Waiting in our midst, as if they were the worst kind of terrorist and serious offender, beneath even the right to an attorney and the jury trial we afford the worst murders and rapists.
We have not even begun to have a real conversation about how to deal with refugees and there is no discussion whatsoever about domesticating the international norms contained in the various humanitarian treaties we’ve signed upto.
The rights of everyone
The average Bahamian sees immigration issues as totally separate from their own day-to-day lives. The experience of the undocumented immigrant is an alternate universe with its own distinct rules and realities. But are the rights listed above, denied to immigrants every day, not also routinely withheld from Bahamians?
Don’t thousands of Bahamians suffer hardship while the government decides to make up and apply rules that don’t exist in the law? Politicians issue arbitrary edicts like “No more taxi plates” or “No more gambling houses for 10 years” or “No more jet skis on the beach” – as if they had the legal power to do so. The result is Bahamians suffer economically.
Or, the police just assume they have the power to go into someone’s bar or restaurant with no warrant, remove the owner’s business licence, confiscate their goods or equipment and close the place down.
Or, in the name of fighting crime, they simply cordon off an entire area of Bain Town, Nassau Village or any other inner city community, then go from house to house, search every car and hold young men in cells over the weekend with no charge.
These are violations of the right to privacy, property, freedom of movement and the presumption of innocence – the very abuses visited upon immigrants. Bahamians suffer these injustices routinely in the name of some lofty ideal or other, but the result is always the same – a violation of their constitutional rights as human beings. These are rights the government, the police the Immigration Department, do not have the lawful power to take away.
It has always been easy to find an excuse to take away people’s rights, whether citizen, resident or immigrant. And, coming out of the mouths of politicians that we respect, especially in small communities, it seems reasonable because “They are fighting crime for us,” or “Getting Guns and Drugs off the streets”, or “They are getting rid of illegals”.
In reality, it amounts to a total systematic breakdown of the rule of law. Whenever this has happened in other countries, the result is always a huge increase in arbitrary power in the hands of the authorities, who in turn become increasingly anti-democratic and oppressive.
The worst kind of lawlessness
We tend to excuse government when it breaks the law. MPs fail to disclose their assets for years; ministers approve developments that clearly damage the environment; law enforcement makes up rules as it goes along – all without so much as a slap on the wrist. For some reason, Bahamians assume the law only really applies to regular civilians and that indictable offences are somehow less illegal when officials commit them.
It is actually the other way around: crimes committed by government officials amount to the worst form of lawlessness imaginable. If I as an individual rob a store or commit a violent assault, this does not alter the basic rules and standards of society. In fact, law enforcement’s role is to reinforce social norms by making an example of those who stray.
But when the governing authority breaks its own rules arbitrarily and without consequences, the effect is the opposite. A glaring example is set that lawlessness pays and that there is no downside to oppressive behavior.
How can a society expect underprivileged, undereducated, deprived, marginalised, poor, struggling people to “respect the law” and not commit crimes, when their political leaders openly and brazenly trample on the constitution whenever it suits them?
Eventually, if allowed to continue, this trend will threaten the very fabric of our society. ‘One rule for us, another for them’ is the attitude that leads to and facilitates dictatorship.
And then they came for me
This may seem far fetched, but we already live in a country far more coerced and controlled than it should be. We see no problem with police ordering us not to photograph them while on duty. We don’t mind that we can’t watch a film at the movie theatre unless the Play and Films Control Board says so, or that the Christian Council gets to decide if a band can perform here. No one is up in arms about the fact the use of our own money is undemocratically limited through Exchange Control or that some Investment Board decides who can buy or sell property.
Every day, Bahamians settle for being arbitrarily controlled by means that have no basis in law. We are a frightened, cowed society. There could be no more fertile ground for the seeds of dictatorship to flourish.
How would we get there? By little, incremental steps along the very path described above: the curtailment of rights and freedoms based on some supposed benefit for the public. This is how every dictatorship that ever existed was formed.
German Pastor Martin Niemöller, who survived seven years in Nazi concentration camps, gives an instructive example of what the plight of “Illegals” and undocumented immigrants really means for Bahamians. He said:
“First they came for the socialists, and I did not speak out – because I was not a socialist. Then they came for the trade unionists, and I did not speak out – because I was not a trade unionist. Then they came for the Jews, and I did not speak out – because I was not a Jew. Then they came for me – and there was no one left to speak for me.”
This is the true nature of the situation we face in The Bahamas today. We in the human rights community recognise the defence of the basic rights of “Illegals” and undocumented migrants is the first and necessary step in the defence of the rights of everyone. If more Bahamians do not come to understand this soon, it will be too late for us all.