The Tribune

By LARRY SMITH

YOU have to admire crusading lawyer Fred Smith for his chutzpah and energy in tackling regulatory and human rights abuses that would otherwise almost certainly go unchallenged.

Smith is one of a very few Bahamian professionals who do this sort of thing. And quite often it is on a pro bono basis. Over the past few decades, he has undertaken hundreds of cases, many at great personal cost.

Contingency (or success) fees are not allowed in Bahamian legal practice. So as a principal in one of the top law firms in the country – Callenders & Co – it’s fair to say that Smith could be a lot richer if all of his time, and that of the many associates in his firm, was billed at commercial rates.

It was Smith who, in 1985, helped set up, and continues to lead, the Grand Bahama Human Rights Association – a legal aid and advocacy group formed in response to Loftus Roker’s infamous immigration crackdown – when Haitians were hunted down with dogs. And he is a co-leader of the recently formed environmental watchdog group, Save The Bays.

Over the years, his crusades have annoyed both Free National Movement and Progressive Liberal Party administrations – which is generally a good sign – and he has notched up some notable successes, including at the Privy Council level.

The latest controversy is the so-called “new immigration policy” that came into effect last November. Chiefly, this requires non-Bahamians living here to have either a passport issued by their country of nationality, or a Bahamian residency permit. But it has also involved publicised community raids by immigration officers.

For political reasons, the policy was presented as something new and dramatic, to give the impression that hardline action was being taken against Haitian migrants living here illegally.

This fed into the fear and loathing that most average citizens seem to have for Haitians and Bahamians of Haitian descent. It also had the effect of bolstering the PLP’s sagging approval ratings and diverting attention from the government’s growing list of cock-ups.

Condemning the policy as inhumane and illegal, Smith argued that immigration officers were being sent out to terrorise the Haitian-Bahamian community using tactics that violated the constitution.

Those tactics include indiscriminate round-ups and roadblocks; the requirement that residents carry ID at all times; indefinite detention without bail and in the absence of criminal charges; and deportation without conviction or being served with a valid deportation order.

The Immigration Act stipulates that anyone landing in the Bahamas illegally is guilty of an offence and liable on conviction to a fine or imprisonment, after which they may be deported. But these days, those arrested during immigration round-ups do not seem to go through any court process.

The government can also issue discretionary deportation orders if the minister believes those involved have landed or remained here illegally. But such orders have to be authorised by the Governor-General and made available to the detainees. By most accounts, this does not appear to happen.

And the situation is complicated by many shades of grey when it comes to the Haitian-Bahamian community. For example, the children of Haitian parents born in the Bahamas have a right to apply for citizenship at the age of 18, if they have lived here for ten years prior to their application. Deporting those who have submitted an application, but have been ignored by the government is “unconscionable”, according to Smith.

“This draconian business of wholesale round-ups in the dead of night, indiscriminately casting a net over entire sections of the population, both innocent and guilty alike, can only be described as institutional terrorism,” Smith said. “They are breeding hatred, racism and discrimination.”

But Smith’s calculated use of offensive hyperbole to grab attention – such as likening the Carmichael Road Detention Centre to Nazi death camps where millions were gassed – has attracted equally strong criticism from those who believe the country is being overrun by immigrants.

His remarks are considered “traitorous” by some. And according to Immigration Minister Fred Mitchell, Smith “is well known for alarmist and inflammatory rhetoric which does not often approximate the facts”. As a consequence, and in his characteristic menacing style, Mitchell threatened Smith with charges of criminal libel.

Abolished in the United Kingdom years ago, the archaic law of criminal libel is still used by governments around the world as a tool to restrict freedom of expression. It is based on the broad premise that any criticism causing the public to hold the government in disrepute constitutes an offence.

According to the International Press Institute, a network of journalists and media executives which promotes press freedom, “criminal libel laws are colonial-era relics designed to suppress dissent and criticism and have no place in the modern democracies of the Caribbean”.

Yet this is the first resort of Fred Mitchell as a government minister – a man who likes to present himself as a thoughtful writer and freedom fighter whenever he is out of office.

In fact, Smith and Mitchell were once colleagues of sorts in dealing with civil rights issues like the Roker crackdown, the mandatory death sentence, and the controversial PLP proposal to draft Bahamians into National Service in the 1980s. So it is more than ironic that they take opposing sides today.

Punch columnist Nicki Kelly also joined the fray, accusing Smith of making “outrageous claims” against the government, based on the fact that he had lived in Haiti as a child with his “Bahamian father and Haitian mother”.

After pointing out that his mother was a Palestinian Arab who just happened to be living in Haiti with her merchant father when Smith’s Bahamian-born father married her, Smith conceded that the war of words was regrettable.

“I’m so sick of this. It is regrettable that every time I open my mouth, my critics seek to devalue what I say by reference to my alleged heritage, as if all I say or do in relation to human rights for Haitians, etc, is because I’m allegedly a Haitian.”

He also noted that our constitution protects the rights of everyone living in the Bahamas; not just those born of Bahamian citizens: “I find it therefore regrettable that Ms Kelly would seek to trivialise and devalue my freedom to express my views by attributing to them ill-informed and false personal motives and thereby holding them to public scorn and ridicule.”

Most judges would agree with such sentiments on constitutional protections. For example, a 1981 Supreme Court judgment called deportation “a serious interference with individual liberty that may involve confinement … and when drastic powers are given to interfere with personal liberty there must be the strictest compliance with the letter of the law”.

However, there is certainly no doubt that any steps the government might wish to take against persons of Haitian descent living in the Bahamas – no matter how draconian or ill-advised – will receive the enthusiastic endorsement of most citizens. This is the very reason why we must be extra careful to observe both the letter and spirit of the law – to avoid unpleasant consequences.

There is also no doubt that our so-called Haitian problem is largely driven by Bahamians in the first place. We eagerly employ Haitians in every menial, minimum wage job available, and rent them sub-standard housing as slumlords. In fact, this contradiction is at the very root of the so-called Haitian problem.

The Carmichael Road Detention Centre is one of those unpleasant consequences mentioned earlier. It has long been a sore point for human rights activists. A dozen years ago, Amnesty International published a 70-page expert report which described beatings by guards as well as inadequate food, water and medical care.

There have been at least two deaths at the detention centre since 2003 and at least four official investigations that we know of over the same period – the results of which have never been made public by any government.

Originally, all undocumented migrants were held at the prison. The detention centre was set up in the mid-1990s by the Bacardi family to accommodate Cuban migrants, and the government eventually decided to hold all illegal migrants there. But no governance system was ever established, and there is no public oversight of the camp’s conditions.

In other words, the detention centre has no basis in law. Neither the Immigration Department nor the Defence Force has any legal remit to operate a prison. And there are no rules or regulations to govern what goes on at the centre, where often as many as 500 people are held in a facility with capacity for 100. And remember, these are mostly ordinary folks seeking a better life. They are not terrorists or gangsters.

According to Smith, conditions at the centre are harsh and degrading: “People are beaten in its barbed wire confines, property is stolen, rules are made up, no pictures are allowed, and there is a thriving black market for bare necessities. The toilets are clogged, overflowing and unusable. There is no toilet paper, and human waste slops around. The stench is appalling.”

But much more to the point: there is no due process of law.

That fact alone should be enough to generate serious concern among right-thinking Bahamians, because where there is no due process there will always be abuse. And abuse of human rights and the legal process in one sector of society will inevitably lead to other abuses.

It is the abuse of human rights and due process that will damage the reputation of the Bahamas, not the criticism of such abuse by those seeking to protect our rights and freedoms.

Is there a better way to address the problem of Haitian migrants in our midst? According to Smith and others, we should be focusing on effective border enforcement while dealing with the outstanding applications for citizenship so that those people who have lived here for years can be integrated into society.

“Illegals should be identified on a case-by-case basis, as the police do with any other alleged law breaker, and as the constitution demands,” Smith said. “Immigration officers have no greater powers than the police, and immigration law is like any other law on our books. The constitution is the supreme law.”

So what will be the ultimate effect of this so-called new immigration policy that has everyone so riled up and that is damaging the reputation of the Bahamas?

The domestic political impact is easy to appreciate, and that was clearly the main point. But the government’s budget can only cover so many detentions and repatriations a year – which amounts to about 3,000 Haitians.

It has been that way for years – so really, we are looking at a zero sum game in terms of actual repatriation of illegals. However, the social costs of terrorising communities, abusing due process and stirring up communal hatreds will be much greater.

• What do you think? Send comments to lsmith@tribunemedia.net or visit www.bahamapundit.com.