By Frederick Smith, QC
The Bahamas Court of Appeal is to be praised for an exemplary display of courage and independence in delivering its landmark ruling confirming the right of all unwed Bahamians to pass citizenship to their children at birth in the Shannon Rolle case. This should resolve generational inhumanity and injustice for thousands of Bahamians.
We should be exceedingly proud as a country that in the face of ever-increasing social and political pressure, ever more vocal and at times rabid opposition, our Judiciary has once again shown itself equal to the lofty task of defending natural justice and upholding the rule of law. And thank goodness. Nowadays, it would seem our Judges are the sole remaining protectors of justice, the lone voice of reason crying out in the wilderness, the last line of defence in the struggle for social progress, the only beacon of hope in the dark and stormy tide of irrational hate that continues to infect and sicken Our Bahamas.
They were not always alone in this effort. In November 1970, as the dream of an enlightened and progressive Independent Bahamas had already begun its steep descent into the seventh circle of political tribalism, victimisation and discrimination, the battlements of equality and justice were also manned by a small group of breakaway PLP MPs, who opposed Pindling in a narrowly unsuccessful no-confidence vote. First known of as the “Dissident Eight” and then the Free PLP, the following year this group would join with other opposition forces to become the Free National Movement (FNM).
It was their tough and pragmatic, but also idealistic and progressive leader, Sir Cecil Wallace-Whitfield, who had brought the vote of no confidence. He had the courage to defect from a formidable populist PLP government – taking with him some of the best political minds of a generation – precisely over what he perceived to be a growing tendency toward dictatorial excess, arbitrary abuse of power, distain for individual rights and disrespect for the Constitution.
In 1974, Sir Cecil Wallace-Whitfield put his money where his mouth was, defending the mercilessly politically targeted long-time resident, Canadian-born Darcy Ryan, who, as a Belonger under the Constitution was entitled to citizenship but was irrationally denied by the PLP in what was one of the first real flexings of Pindling’s authoritarian muscles - an early foray into what would later become a deliberate and systematic programme of wilful distain for the rule of law, political victimization and discrimination.
The FNM founder fought an entire government for years, to the bitter end, even convincing the Supreme Court to order the imprisonment of a Cabinet Minister for ignoring a judge’s order to grant Mr Ryan citizenship.
Sir Cecil was someone who would never countenance the idea that a person could be discriminated against because of their background, ethnicity, gender, religion or political persuasion. Today, that titan of a man is surely turning in his grave over the Great Betrayal that is being perpetrated in the name of the party to which he gave every last drop of his blood, sweat and tears, even unto his dying breath.
Today’s FNM is an impotent shadow, empty shell and bastardised, sickly version of what it was in his time. The so-called party of freedom and equality has become a crass panderer to the worst, most xenophobic elements in society, more than willing to waste desperately needed public funds - in the wake of a devastating Pandemic - just to fight the Court of Appeal’s decision to grant equality to Bahamian parents and children.
The once brave and principled FNM has reduced itself to the equivalent of a political used car salesman, boorishly peddling in hatred and incitement, currying favour with elements of society holding precisely the outlook the party founders rejected: that some people deserve special privileges, while certain other unfortunates are to be reviled and disenfranchised, just because of who they are - women, foreigners, migrants and their children.
The Bahamas Court of Appeal has now spoken in the name of fairness, justice and equality. I have no doubt the FNM’s ill-conceived appeal of this ruling to the Privy Council in London – to be undertaken at great public expense – will result in a similar outcome.
Hopefully, that august body takes the opportunity to publicly dress down a hapless, feckless government for its regressive, abusive and self-serving tactics.
But this FNM still won’t learn. No matter how many court rulings knock them back, they seem only to know how to continue down the same arrogant road, cutting off their nose to spite their face, stubbornly and repeatedly.
The decision to challenge the citizenship case is not the only serious departure from the FNM’s lofty roots. Take for example the government’s shameful ethnic cleansing campaign, the stated aim of which is to bulldoze and eradicate every single ethnic Haitian community in The Bahamas, erase cultural diversity, forcibly assimilate people and force them to conform to a particular style of living, dictated from on high.
Carried out in defiance of ongoing court proceedings and in the face of an injunction prohibiting home demolitions, this campaign is the epitome of authoritarian highhandedness, ethnic discrimination and contempt for the rule of law.
Under this FNM, the armed forces, particularly the Royal Bahamas Police Force and the Immigration Department, have been allowed to continue to run rampant, oppressing and terrorising the citizenry with impunity, riding roughshod over people’s constitutional rights and generally behaving as if they are above the law.
Both agencies continue to conduct illegal roadblocks and stop and search exercises, in total defiance of the right to freedom of movement and the presumption of innocence. The use of arbitrary force on the part of the police has been given a huge boost by the government’s use of Emergency Orders, which appears specifically designed to create a law enforcement dictatorship where officers can interfere at will with members of the public, controlling their movement, demanding the production of “papers” and arresting people on virtually any pretext, or simply on a whim.
Meanwhile, on this FNM’s watch, police killings of civilians is at an all-time high. In 2020 alone, officers shot and killed 20 people, per capita more than any other country in the region. And while we hear much in the news today about police killings in the United States, measured by that same metric, the problem is almost FIFTEEN times worse in The Bahamas than in our neighbour to the north.
Already this year, the police have killed another six civilians, yet there has been no public effort on the part of the government to curtail or even investigate this trend. Have the police taken it upon themselves to become the judge, the jury and – quite literally – the executioner? What of the terror this strikes into the citizenry, the collapse of trust in law enforcement that it generates?
Under successive governments, The Bahamas Immigration Department has been allowed and even encouraged to become an epicentre of discriminatory abuse, lawlessness and unbridled wielding of arbitrary power. Sadly, the FNM is drafting in Fred Mitchell’s illegal wake. Immigration officers continue to believe they are the unquestionable gatekeepers and sole arbiters of every individual’s very right to exist in this jurisdiction. They feel entitled to adjudge people “illegal”, thereby rendering them essentially non-persons who are devoid of rights. This FNM government has done absolutely nothing to stop this, despite judgment after judgment of the courts, choosing instead to positively encourage illegality.
This self-arrogated power has in turn been used to terrorise and disenfranchise innocents in countless numbers, to abuse and extort them for money to line the pockets of officers while taking everything from the victims, even their personal liberty. Under this FNM, the evils perpetrated by the Immigration Department have been bolstered and supported as never before. People who have been held for up to nine years in arbitrary and illegal detention, never charged with any crime, find that efforts on the part of attorneys and human rights defenders to have them released are resisted tooth and nail, at the highest levels of government.
Again, the Judiciary has performed admirably in restoring these victims to liberty as quickly as possible whenever such cases are uncovered. And when the courts are asked to make what restitution may be possible for these egregious crimes against humanity, the Attorney General’s office has fought under this FNM to grossly limit compensation to victims.
The judiciary must be praised for resisting political might and ruling on the side of justice. For this, judges have been criticised and maligned in the public sphere by powerful political figures, their rulings disparaged and continually challenged, at great expense to the public purse and great damage to the public’s perception of the importance of the rule of law.
I say not just as an officer of the court, but also as a citizen of this country, that we are indeed extremely lucky to have a Judiciary of such integrity, which guards its independence jealously and remains committed to safeguarding the underpinnings of our democracy in the face of this unconscionable level of duress. Many societies, in the developing world in particular, are not so fortunate.
The judges are more than doing their part. It falls to the citizenry now, to see the political class is called to account for its betrayal of the founding principles of our independent Bahamas. If we do not demand better of our leaders, we will not get it. Things will only continue to get worse. We never know when the sites of the discrimination rifle will be fixed on any one of us.
As for the FNM, it’s own members, and individuals in leadership positions within the party who know what is right and proper, must rediscover their courage, find their voice and stand up and be counted. They cannot continue to watch from the sidelines, toe the party line and pretend they do not see what is happening. Evil will always triumph when good men do nothing.
For my part, I cry shame on my FNM for betraying its founding identity, and applaud my PLP colleague Wayne Munroe for standing up in the name of justice and equality.