The Tribune

• Act barring non-Bahamian workers takes effect today

• Judge rejects warnings of ‘possible bankruptcy’

• Halt to Act would ‘cripple’ Parliament authority

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Top fisheries processors, boat owners and foreign workers have lost their bid to block the Fisheries Act’s implementation despite arguing it would cause the “possible collapse or bankruptcy of their businesses”.

Justice Indra Charles, in her ruling yesterday, said that granting the group’s request for an injunction to halt the Act’s enforcement would “cripple” Parliament and the government’s ability to make and pass laws for “the ‘peace, order and good government of the country’”.

Her verdict thus gives the go-ahead to today implement an Act that bars foreigners from working in the Bahamian fisheries sector. However, Justice Charles said the way remains clear for the exporters, boat owners and others behind the action to challenge the new law on constitutional grounds now it has been enforced on June 22, 2021.

Major wholesalers, including Geneva Brass Seafood, Paradise Fisheries, Fish Farmers and Audley’s Seafood, had teamed with boat-owning corporate entities and two Dominican fishermen working legally in this nation, together with their Bahamian wives, to challenge the Fisheries Act and accompanying Immigration reforms on the basis that they are unconstitutional and discriminatory.

While Paradise Fisheries subsequently appears to have been removed as a plaintiff, the remaining members of the alliance and their attorney, Alfred Sears QC, the former attorney general, had initially sought a “permanent injunction” from the Supreme court to prevent the government from implementing provisions in the new Acts that they deem offensive.

Their case, in particular, focused on sections 31 and 32 of the Fisheries Act, which bar foreign fishermen - even those in The Bahamas legally with work and spousal permits, or permanent residency - from working on Bahamian-owned fishing vessels.

However, Justice Charles ruled that Mr Sears and his clients had failed to show the matter was sufficiently “exceptional or unusual” to warrant the court’s intervention - and interference with Parliament’s legislative functions - at this early stage of the case.

Expanding on an earlier oral ruling she gave on June 11, 2021, she noted that the two Dominican fishermen - Morazan Zuniga Jackson and Jaime Reynaldo Perez  - were both “the breadwinners for their respective families” being married to Bahamian citizens and possessing permanent residency status with no restrictions on their right to work.

The duo were employed as professional divers by the commercial fishing entities that have joined them as plaintiffs in the case, which alleges that the Fisheries Act and associated legal reforms violate numerous provisions of the Bahamian constitution. They are also charging that they breach multiple United Nations (UN) and other treaties/conventions that The Bahamas has ratified.

“The pivotal grievance of Mr Jackson and Mr Perez is that since they are not Bahamian citizens, when the Acts are passed on 22 June, 2021, their right to work in The Bahamas as commercial fishing divers will be infringed,” Justice Charles wrote. “They say that they hold spousal permits or permanent residency certificates, which give them an unrestricted right to work as commercial fishing divers.

“Now, according to them, that right will be taken away on 22 June, 2021 and, as such, the Acts contravene various articles of the constitution and their unrestricted right to work derived from their spousal permits/residential certificates.”

Mr Sears argued that the case raises “serious questions” regarding discrimination, constitutional breaches and the right of the two fishermen to work. It also, he added, involved issues concerning whether Geneva Brass Seafood and the other companies were being discriminated against “and their reasonable expectation to continue to contract” the Dominican duo for the benefit of their businesses.

“He argued that with respect to Mrs Johnson and Mrs Perez, because of the absolute prohibition of their husbands from engaging in their profession as commercial fishing divers, the prohibition will in effect be an arbitrary and unlawful interference with the family life of Bahamian wives and their foreign husbands,” Justice Charles said of Mr Sears’ arguments.

“Mr Sears QC further submitted that Mr Jackson and Mr Perez, as holders of spousal permits or permanent residency certificates, are being deprived of their reasonable expectation to continue to practice their profession as commercial fishing divers in The Bahamas, in breach of their constitutional right to due process and the secure protection of the law.”

However, Luana Ingraham, representing the Attorney General’s Office, rejected Mr Sears’ assertions by arguing that his clients’ claim was “frivolous and vexatious, and they have failed to prove that their fundamental rights are likely to be infringed with the passing of the Acts”.

While the two Dominicans and their families, together with their employers, “would be adversely affected... the Parliament of The Bahamas has made the economic choice that the benefit of the fishing quota should go to genuine Bahamian citizens”. And Ms Ingraham argued that “the Acts reserved fishing for Bahamian citizens, and so restrict not only Mr Jackson and Mr Perez but everyone who is not a citizen of The Bahamas.

“In any event, says Ms Ingraham, if the Acts are proved to be discriminatory, which the respondents aver they are not, a claim of discrimination does not apply to persons who are not citizens of The Bahamas. Therefore, Mr Jackson and Mr Perez’s application must fail. These are powerful arguments,” Justice Charles noted.

Mr Sears argued that passage of the two Acts into law today would cause “irreversible prejudice” to the two Dominicans by preventing them from earning a living in their chosen profession, but Justice Charles said they “have not been deprived of their right to reside and work in The Bahamas”.

The former attorney general also argued that if the injunction was not granted then his clients “will face irreparable harm that cannot be remedied by adequate damages.

“The harm includes possible collapse or bankruptcy of their businesses, interruption of third-party contracts, loss of good will and damage to their reputation and creditworthiness, insufficient income to take care of their family, loss of mortgages and the frustration of the desire to maintain marital and family relationships and marital home in The Bahamas,” Justice Charles added.

However, she determined that the Government - despite its present fiscal crisis - has the necessary financial resources to cover any damages should their constitutional claim succeed later. Justice Charles said their ability to bring such a case once the Acts are enforced was a key factor in deciding not to grant the injunction.

“The Applicants have not demonstrated to me that there are any exceptional or unusual circumstances which justified the court’s interference with the enforcement of the Acts,” she ruled. “Presently, there is no exceptional or unusual circumstance which exists for the court to interfere with the legislative process of preventing the Acts from being passed.

“The law is clear that the court should, as far as possible, avoid interfering with the pre-enactment legislative process for to do so would be tantamount to meddling in the affairs of the Parliament. Undoubtedly, such challenges would not only open the floodgates for a litany of unmeritorious actions but, more importantly, they would cripple the executive from passing laws for the ‘peace, order and good government of the country’.

“The court does not have jurisdiction to prevent Parliament from making and passing legislation since it is within their purview to do so. The court, as the guardian of the constitution, is charged with the responsibility to interpret and apply enacted laws. Except for that function, the duty of the courts is to administer Acts of Parliaments, not to question them. Our democracy is predicated upon the doctrine of separation of powers.”

Tribune Business previously revealed how the Fisheries Act, and its bar on foreign fishermen working on Bahamian-owned vessels, has caused a split in the fisheries industry. The Coalition For Responsible Fishing (CFRF), a group representing major fisheries wholesalers, processors and exporters, warned that up to $8m would be lost, and some 1,000 persons hurt, if the reforms went through.

It argued that preventing foreigners working on locally-owned boats “in any capacity” would result in “the unemployment of hundreds of Bahamians” at a time when the country could least afford it. The group’s October 25, 2020, position paper warned that more fisheries businesses will fail without “significant amounts of experienced skilled labour” that are presently not available in The Bahamas.

Arguing that trained potters and divers, in particular, were in short supply, the Coalition warned that the ban on expatriate labour proposed under the Fisheries Bill 2020 was counter-productive and could result in the loss of millions of dollars of export-driven foreign currency earnings just when The Bahamas needed every cent it could get following COVID-19’s devastation.

However, the National Fisheries Association (NFA) said it fully endorsed an Act that “represents the will of the majority of law-abiding Bahamian fishermen” and “puts Bahamians first as the stewards and managers of the fisheries sector”.