INSIGHT: ‘Respect the rule of law’ - they say it but simply don’t do it


Attorney Fred Smith QC

By Frederick Smith QC

The irony of the November 2014 immigration policy launched by Fred Mitchell is that it largely targeted people who had never committed any offence under the Immigration laws. The vast majority of those detained at intimidating road blocks, spirited away in terrifying home invasions, or accosted in the street while minding their own business were born in The Bahamas, waiting for papers, holders of work permits, spousal permits, or had some other lawful reason to be in the country. Only a fraction were migrants who could be accused of violating Immigration laws. The FNM continues to imbibe drunkenly on Mitchell’s heretic Kool Aid as the inhumanity visited on the poorest of the poor from Abaco post Dorian has dramatised.

The tactic has been to confront people, demand they produce, on the spot, documents proving their “status” or right to be in the country, and carting them off to detention if they cannot. This has resulted in the propagation of a dangerous and sinister heresy, to the effect that being “undocumented” means you are presumed “illegal”, thus blurring the distinction between those who have actually violated the Immigration Act and those who have not.

Under that Act – the only law which the Immigration Department is legally entitled to enforce – violations include: entering without permission, overstaying your allotted time, working without a permit, harbouring and hiring someone to work without a permit. There is no violation that involves not having documents, and no obligation for anyone to carry papers of any kind.

Constitutionally, everybody is innocent until proven guilty. Until convicted of a crime, we are all free to move about the country without hindrance. The only exception is when a person is arrested on probable cause on suspicion of an offence

But, if Immigration can only enforce ONE law, and that law does not require me to carry or even own any form of documentation, what right do they have to interfere with me? Not carrying a document the law doesn’t require me to carry is not a valid reason to suspect me of anything. Certainly, it does not fit the definition of probable cause. And, exactly which crime am I suspected of? Did I enter illegally? Work without a permit? An officer can’t just arrest me on suspicion that I might have committed “some crime or other” – it must be in connection with a specific violation of the law.

After the storm

In the aftermath of Hurricane Dorian, the FNM have binged on the illegal/undocumented heresy arresting people at airports, surrounding storm shelters and raiding churches where the displaced have been given sanctuary. These are people who have lost everything including identity papers. So now, there is a whole new category – newly “undocumented/illegal” people who are being victimised in contravention of the law. It is terrifying to imagine how many people have been illegally detained and/or deported since the storm.

People born in The Bahamas, to non-citizen parents, have the right under the Constitution to be registered as a citizen and/or regarded as such until they are issued a certificate of citizenship. They are “Citizens In Waiting”. They are not undocumented migrants - they didn’t migrate from anywhere. They are not “illegals” and they have broken no law. It is unconstitutional to expel them.

Nor is it an offence NOT to apply to be registered as a citizen under the Constitution. For people born in The Bahamas, it is not an offence to work, get a bank account, get a business licence, go to school, etc. It is illegal to demand those persons “become documented” or “get papers”. Another heresy of Mitchell’s was demanding that all such persons get a passport of the place of the citizenship of their parents in the meantime; before the DOI would even consider their applications. Immigration has no lawful power to randomly stop, question, search, arrest and detain people at Carmichael Concentration Camp.

The homegrown demagogue

Perhaps the former PLP government didn’t have enough work to do and perhaps there weren’t that many people “invading” illegally after all. Maybe they needed a scapegoat to blame for their inadequacies, challenges and failures – in particular a stagnant, depressed and recessionary economy with a 24 percent unemployment rate.


PLP chairman Fred Mitchell.

And so! Enter stage right: Fred Mitchell, our homegrown demagogue, to save the day by whipping up nationalistic, patriotic frenzy which becomes a magical distraction from reality and political panacea, getting the nation to focus on this “illegal immigration problem”. Fred Mitchell modelled himself after Loftus Roker and became the PLP strongman saving the nation from immigrant hordes! The Mitchell Heresy targets people born in The Bahamas to foreign parents who don’t have a certificate of citizenship, or a Belonger’s Permit. Let me be clear about this as well: there is no law which requires someone born in The Bahamas to have a Belonger’s Permit until they get their certificate of citizenship and/or passport from The Bahamas.

By political sleight of hand, he and the PLP government, condemned perhaps 25,000 to 40,000 people born here and who never left The Bahamas. Most waiting for their applications to be processed and have been law abiding “Citizens In Waiting”, and who consider themselves Bahamians – except they lack that little piece of paper.

They are, regrettably, like the Jews in 1930s Germany, a soft, easy target. They are for the most part poor, politically and financially weak, innocent of political ways, and are already victims of 50 years of abusive PLP and FNM policies in which their grandparents, parents and they have been saddled with the blame for every conceivable social, cultural, health, employment and criminal ill in the Bahamas.

Defying the law

Meanwhile, in case after case, the courts continue to uphold the legitimacy and validity of my public utterances on these issues and, at the taxpayers’ expense, keep ordering the government to pay costs to those who have been illegally abused by Immigration. There is something very wrong in a democracy when Executive branch after Executive branch, Minister after Minister, Attorney General after Attorney General, continues to ignore the written judgements of our Supreme Court. Yet perversely government continues to parrot the line that it “Respects the Rule of law”.

It is not only in the domestic arena that our government continues to be called out for ignoring its own laws. The Inter-American Commission on Human Rights and NGOs like Amnesty International and Robert F Kennedy Human Rights have all expressed great concern over the government’s illegal actions which are not only in breach of domestic law, but also in breach of the international treaties the government has entered into.

Misguided Charade

This entire charade from November 2014 has been about making people have papers as opposed to focusing on using the financial and human resources of Immigration and the Defence Force to patrol the borders, prevent illegal immigration and process the thousands of applications.

PM Minnis gulped Mitchell’s Kool Aid in his October 2018 “Get your papers straight or get out” diktat! Well, Fred Smith doesn’t have a certificate that says he’s a Bahamian citizen and ironically was born in Haiti. I can’t wait for Immigration to detain me for papers.

During the many years I have criticised their illegal actions and identified the laws they have broken, no Attorney General, Minister of Immigration or Director of Immigration has ever identified a law entitling them to do what they’re doing or showing how I am wrong.

Indeed, I have publicly challenged Fred Mitchell, PM Minnis, former Immigration Minister Brent Symonette, and Attorney General Carl Bethel to public debates, over the rule of law. Not one has accepted to date.

The theatre of the absurd

Mitchell’s Heresy has turned the presumption of innocence and the right to freedom upside down in The Bahamas. Because of his insanity, or calculated political cunning, a person is now simply guilty unless they can prove otherwise and liable to be questioned, arrested, indefinitely detained and often deported, without ever having committed any offence.

Mitchell and his unthinking acolytes PM Minnis, Symonette and now Johnson have effectively made it illegal for you to be born in The Bahamas and not have papers – an amazing new criminal offence apparently sprung, fully formed, out of thin air!

This absurd, surreal, tragic, Alice in Wonderland Banana Republic country The Bahamas has now become is because of men such as these. They have illegally hurt, degraded, brutalised, abused, victimised and expelled many thousands of people. If we were a right thinking society, they would be banned from the political stage.

Surely this madness must come to an end. I beg the PM Minnis and his ministers, in particular Minister of Immigration Johnson (whom I know to have been in the past a devotee of the Rule of Law) to please pause, obtain proper legal advice and act accordingly. I’m not in a personal fight with any of them and I am not trying to prove how correct I am. I simply wish they would pay heed to the decisions the Supreme Court keeps delivering in judgement after judgement, during administration after administration, and for once, change course and do the right thing to stop the abuse of thousands of innocent human beings born of the soil and simply waiting for their papers.

More dangerously, allowing the erosion of the rights of some means eventually the erosion of the rights of all.