A major fingerprinting lesson
The most efficient way to respond to the many varieties of political “yardfowls” in Barbados who prostitute themselves on the altar of political expediency is to expose them with the facts!
And so, I now propose to use this article to expose the facts underlying the legal and political “sinfulness” of the recently nullified Immigration (Biometrics) Regulations 2015, otherwise known as the “fingerprinting regulations”.
The facts are as follows:-
On the 17th of April 2015, the Right Hon. Freundel Stuart, the minister responsible for Immigration, made the Immigration (Biometrics) Regulations 2015 a legal instrument comprising some 18 regulations. At the time, Mr Stuart purported to be acting under certain powers granted to him under the Immigration Act of Barbados.
The regulations that Mr Stuart made on the 17th of April 2015 stipulated that :-
a) Where any person seeks to enter or depart from a port in Barbados, that person SHALL provide an Immigration Officer with “biometric data” (fingerprints, facial photographs, a scan of the retina of the eye) through the use of a biometrics system.
b) The Chief Immigration SHALL specify the type of biometrics data that a person shall provide.
c) A citizen or permanent resident of Barbados who refuses to provide an Immigration Officer with the specified biometric data may be restrained from leaving Barbados or from re-entering Barbados.
d) A citizen or permanent resident of Barbados who complies with the demand to provide the specified biometric data when he or she leaves Barbados, but who then refuses to comply with the demand to provide the specified biometric when he or she seeks to return to Barbados, SHALL be refused re-entry into Barbados.
Now, the first “political sin” that Mr Stuart committed when he made these far-reaching regulations, was that he made them without first consulting us – the people of Barbados. Indeed, before actually making any such regulations, Mr Stuart should have informed us that he proposed to make regulations of such a fundamental and far-reaching nature, and should have given us the opportunity to think about, discuss and give feedback on his proposal. Surely, this is how a democratic system of Government is supposed to work!
The second “political/legal sin” consists of the fact that the regulations that Mr Stuart made on the 17th of April 2015 constituted a clear breach of the statutory and constitutional rights of the citizens and permanent residents of Barbados. The citizens and permanent residents of Barbados possess statutory and constitutional rights to enter and to leave Barbados; rights that are outlined in the Immigration Act and in the Constitution as follows:-
Section 4 of the Immigration Act:
1. A citizen has the right to enter Barbados.
2. A permanent resident shall, so long as he continues to be a permanent resident, be permitted to enter Barbados.
3. The Minister (responsible for Immigration) may prohibit the entry into Barbados of any person other than a Citizen or Permanent Resident.
Section 22 of the Constitution:
1. No person shall be deprived of his freedom of movement, that is to say . . . the right to enter Barbados, the right to leave Barbados . . .
2. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contradiction of this section to the extent that the law in question makes provision . . . for the imposition of restrictions on . . . any person’s right to leave Barbados that are reasonably required in the interests of defence, public safety or public order
Thus, the statutory and constitutional right of citizens of Barbados to ENTER Barbados (their native land) is absolute and unfettered, and cannot be restricted under any circumstances whatsoever!
The statutory and constitutional right of citizens to leave Barbados may be restricted, but only if such restriction is “reasonably required in the interest of defence, public safety or public order”.
However, the blame for this second “political/legal sin” has to be shared between Mr Stuart and his Attorney General, Mr Adriel Brathwaite. As the Government’s chief Legal Officer, it fell to Mr Brathwaite to discern that the regulations made by Mr Stuart breached both the Immigration Act and the Constitution, to point this out to Mr Stuart and to take steps to rectify the “mischief” embedded in the regulations.
However, far from carrying out any such repair job, Messrs Stuart and Brathwaite and the other members of the Administration compounded the wrongdoing by going on to engage in a number of fundamental procedural irregularities in relation to the said Immigration (Biometrics) Regulations 2015.
As noted before, the regulations had been made by Mr Stuart under the Immigration Act: and Section 31 (3) of the said Immigration Act stipulated that all regulations made by the minister responsible for Immigration “shall be subject to negative resolution”.
Now, the legal procedure for enacting regulations that are “subject to negative resolution” is outlined in Section 41 of the Interpretation Act Chapter 1 of the Laws of Barbados as follows:-
(2) . . . the expression “statutory period”. . . shall mean a period of forty days . . .
(7) The expression “subject to negative resolution” when used in relation to any statutory instruments shall mean that such instruments shall, as soon as may be after they are made, be laid before each House, and if either House, within the statutory period next after such instrument has been so laid, resolves that the instrument shall be annulled, the instrument shall be void as from the date of the resolution . . .
Section 16 (1) of the Interpretation Act goes on to state that “every enactment shall be published in the Gazette and, unless the enactment otherwise provides, shall take effect and come into operation on the date of such publication”.
So, having made the Immigration (Biometrics) Regulations on 17th April 2015, Mr Stuart was obligated to lay them before the House of Assembly and the Senate, and to give the members of those two Houses of Parliament a period of 40 days to consider whether they wanted to bring and pass a resolution to annul the said regulations. Indeed, Mr Stuart and his Attorney General were obligated to go through this procedure before they could publish the Immigration (Biometrics) Regulations in the Official Gazette as the law of the land.
But, in breach of this procedure, the Democratic Labour Party administration published the Immigration (Biometrics) Regulations in the Official Gazette of the 23rd of April 2015 as the law of the land, a mere six (6) days after they had been made, and before they had even been laid in the Houses of Parliament.
In fact, the DLP administration did not lay the Immigration (Biometrics) Regulations 2015 in Parliament until the 15th of June 2015, some 53 days after they had already been wrongfully published in the Official Gazette as the law of the land. Once again, this was totally wrong, and in breach of the legal procedure outlined in the Interpretation Act.
The final “political/legal sin” was unwittingly committed by the then Chief Immigration Officer, Ms Erine Griffith, when, in the month of February 2016, she purported to act under the power wrongfully given to her by Regulation 3 (2) of the Immigration (Biometrics) Regulations 2015 to specify the type of biometric data that a person entering or leaving Barbados would be obligated to provide, and to stipulate that ALL such persons — with the exception of diplomats and children under the age of 16 years — would be obligated to be fingerprinted from the 1st day of April 2016.
It is these dastardly “political and legal sins” that the Supreme Court of Barbados extirpated with its ruling on Thursday the 30th of June 2016 in the case of David Comissiong v Freundel Stuart, Adriel Brathwaite and Wayne Marshall.
I wish to once again thank the public spirited attorneys-at-law who participated with me on this quest for justice, legality and democratic righteousness in the political and legal affairs of our country— Mr Edmund Hinkson MP, Mr Lalu Hanuman, Mr Brian Weekes, and Senator Wilfred Abrahams.
Let us hope and pray that the current Governmental administration has learnt something of value from this matter.
President Clement Payne Movement