Monday, Jul 13, 2020
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A shallow discourse

Some issues are worth screaming about.

Others are better served through reasoned discussion and debate.

The proposed Nationality, Immigration and Asylum Bill, 2018, is the kind of dense, game-changing legislation that should have been dissected and understood before all the knee-jerk rhetoric that took place in the wake of the disclosure of its release.

The document, authored by the Law Reform Commission, headed by Dame Anita Allen, was first made public when it was posted on the Office of the Attorney General’s website on February 21.

However, the wider public only became aware of its existence when The Nassau Guardian wrote a headline story on it in the April 2 edition.

Before publishing any stories on the 123-page document, Sloan Smith, the reporter who broke the story, along with our editorial team, dissected the entire bill – not an easy task in one day – to understand what stood out most in terms of its impact on the wider public.

The accompanying 15-page memorandum authored by Dame Anita, which outlined every new and changed provision of the bill and the reasoning behind it, was also meticulously studied before the first word of the first story was written.

The bill’s intent is to repeal the current Immigration Act and the current Bahamas Nationality Act and establish new parameters for asylum seekers in The Bahamas.

If passed and enacted, it will change the landscape of immigration and matters of citizenship in the country.

Only changing the constitution would be more impactful.

Out of an abundance of caution, the editorial team and Smith also contacted Dame Anita to ask her questions about the draft legislation so that we would properly report on the matter.

Something so serious needed no government commentary in the initial reporting.

It needed no reaction from community stakeholders, as the community had yet to be informed.

It needed no sensationalizing.

There are times when just the facts and their controversial implications are sensational enough.

We put in the work to assure that our reporting was solid, and we felt comfortable in publishing the story.

That’s not to say The Nassau Guardian did anything special in the context of the journalism world.

The Guardian simply did what it was supposed to do – due diligence.

If only those who were so quick to comment and follow up reporting on the draft legislation after The Guardian’s stories were published would have done the same, much public confusion could have been avoided.

Many piled on in the aftermath, which is expected in these instances.

Yet, what was clear was that many, if any, of them didn’t bother reading or comprehending the bill before getting into the conversation.

People are busy.

It’s understandable if the majority of Bahamians had yet to read and digest the voluminous document shortly after just learning it was publicly available.

But those who seek to be authoritative voices on the matter should have availed themselves of the document before commenting and responding to reporters’ questions.

And all in media should have done their own due diligence before asking for commentary on the matter.

They showed that they too did not understand the bill.

The reportage in general was poor and a disservice to the public on something so important.

I support my colleagues in media.

It’s not always an easy job what with every know-it-all, many of whom don’t even have the courage to use their real names, trying to tell you how best to do your job.

But when we get it wrong, we should hold each other accountable.

There’s no point in having standards if you can’t recognize when you don’t meet them.

What does the bill do?

As noted, it is detailed legislation that would transform the landscape of immigration.

Among the most important things it does is address articles 7 and 9 of the constitution.

These articles with their entrenched provisions deal with citizenship and affect tens of thousands of people.

Several administrations have attempted to address what many consider flaws in the supreme law through constitutional reform.

All those attempts have failed.

The current administration promised to make addressing the issues that arise from these articles a priority.

Article 7 of The Bahamas constitution states that a person born in The Bahamas after independence, “neither of whose parents is a citizen of The Bahamas shall be entitled, upon making application on his attaining the age of eighteen years or within twelve months thereafter to be registered as a citizen of The Bahamas”.

The constitution is silent on what happens to these individuals before their 18th birthday, or after their 19th birthday.

Article 9 of the constitution states that a person born outside The Bahamas to a Bahamian mother is not automatically granted citizenship, but has a right to apply from their 18th birthday to their 21st birthday, to be registered as a citizen.

The constitution is also silent on what happens before these people reach age 18 and after they reach age 21.

The legislation, despite not being a perfect solution, actually extends vast protections that do not now exist in law to those impacted by the long-standing problem of statelessness and the rights of Bahamians to pass on their citizenship.

The new law establishes that these people lose their constitutional right to be registered after their 21st birthday.

However, the new law establishes a “right of abode”, or a right to live in The Bahamas, for anyone born in The Bahamas to foreign parents while they are a minor – before they reach age 18.

It also establishes a right to live in The Bahamas for anyone born outside The Bahamas to a Bahamian mother, while that person is still a minor.

These minors would be able to apply for a resident belonger’s permit which could be approved by the immigration director, “provided that such an applicant is in the custody and care of a parent or guardian who has the right of abode in The Bahamas”.

For these people, the right of abode would grant them the right to legally work in The Bahamas, and reside in The Bahamas, up to the time they apply to be registered as citizens and while that application is being processed and/or appealed.

For those whose constitutionally mandated time to apply to be registered has expired, they would have six months from the passage of the new law to apply for some form of status, such as naturalization, permanent residency, etc., and would have the right of abode pending the determination and/or appeal.

Those who do not apply risk being imprisoned and/or deported.

However, in no way, as has been erroneously reported in the media, does this prevent these people from becoming citizens.

Becoming a naturalized citizen in The Bahamas is a routine matter that is clearly set out in law.

The law sets out what many legal scholars and every government of The Bahamas and the framers of the constitution have repeatedly contended: there is no right to be registered as a citizen if you fall under those two articles and fail to apply within the constitutionally mandated time.

The bill also establishes provisions for those seeking asylum in The Bahamas.

The bill also establishes more clearly who is allowed to land in The Bahamas and the power of immigration officers to grant permission to land and reside in The Bahamas.

The bill also more clearly defines who is a visitor to The Bahamas.

The bill would also remove the power of citizenship decisions from Cabinet by establishing an Immigration Board to be appointed by Cabinet.

The law establishes a Nationality Advisory Commission and an Immigration Appeals Tribunal to make the process of applying for citizenship and appeals more transparent.

The proposed legislation would obligate the minister of immigration to provide reasons for the rejection of a citizenship application.

It would establish the right of people to appeal their deportation within seven days of being ordered to leave the country.

It also establishes clear stipulations for the deportation and removal of people from The Bahamas.

The legislation establishes in law a separate facility for unaccompanied minors who arrive in the country illegally and mothers accompanied by their minor children who arrive in the country illegally.

It does much, much more.

Agree or disagree, this is significant legislation, carefully crafted by Dame Anita, the former president of the Court of Appeal, and her team to withstand constitutional scrutiny, that will have a generational impact on our country that should be discussed in an informed and mature manner.

Unsound reasoning

Fred Smith, QC, a veteran human rights attorney who has repeatedly sued the government on behalf of people of Haitian descent on immigration matters, at least had the decency to admit he hadn’t read the bill when asked for comment.

Not that that stopped him from commenting.

He suggested that instead of the bill, the government should give automatic citizenship to everyone born in The Bahamas.

Smith knows full well that’s not going to happen.

No sensible government will attempt to do that through statute as it will likely fail a constitutional challenge.

And governments have probably gotten the hint by now that even the most benign attempts at changing the constitution are doomed to failure.

Blanket jus soli citizenship is not a popular concept in The Bahamas. It is doubtful the majority of parliamentarians would approve it, let alone the majority of the voting public.

Yes, there is an irrational fear of a Haitian takeover of The Bahamas.

However, there is a rational concern about illegal immigration from Haiti.

If Smith wishes to actually help stateless children who were born in The Bahamas through no fault of their own, he would be better served working with the government on a solution to best protect them.

If the six-month timeline for registration for status after the bill is enacted is problematic in his view, then he should use his vast legal knowledge to suggest a sensible middle ground.

His self-proclaimed virtue and apparent intransigence achieve little.

Those who have characterized this bill as some draconian approach to immigration designed to unfairly punish people born in The Bahamas to Haitian parents should feel silly.

Or should, at the very least, refrain from speaking on this issue until they are better informed.

Government must do better

The Minnis administration has also handled this issue poorly.

Attorney General Carl Bethel explained quite offhandedly to us in a conversation about a separate matter that the bill was out for public consultation.

We found it quite easily and were stunned when we saw the breadth of it.

When we asked him about it further in the presence of other media after publishing the story, he seemed to understand its implications but was reserved in his commentary.

He explained that the law sought to give voice to areas where the constitution is silent.

But he deferred to the Law Reform Commission as far as the consultation was concerned, while giving no definitive timeline for the consultation process.

Prime Minister Dr. Hubert Minnis was also asked about the bill.

He didn’t reply with any specifics.

He also cited the importance of public consultation.

Then along comes Minister of Immigration Brent Symonette sometime afterward.

We had attempted to get comment from Symonette, himself an attorney, on the bill for more than a week but he was reportedly out of town.

His big takeaway when he spoke on the draft bill last week was that it was not ready for public consultation and it has been mistakenly posted on the Office of the Attorney General’s website.

This, of course, made no logical sense.

Dame Anita, Carl Bethel and the prime minister had already said the bill was out for public consultation.

The next day, having been thoroughly thrown under the bus by Symonette, Dame Anita clarified that she had Cabinet approval to release the bill for public consideration.

The attorney general released a statement the day after that, confirming Cabinet gave Dame Anita permission to release the bill.

Instead of spending three days informing the public of the finer points of the draft legislation, the public instead got to witness the useless wheel-spinning of bureaucracy.

There is much to consider in the draft legislation.

It is not perfect.

But the perfect should not be made the enemy of the good.

This is a good step.

In fact, it is a leap in terms of immigration policy.

We should seek to have more reasoned discourse on something so sweeping, no matter on which side of the immigration debate we fall.

If we cannot do that with matters of such national importance, The Bahamas is doomed to stagnate.

Study and hard work are the tools of progress.

Speaking without understanding and making determinations without assessing information are the tools of the lazy and ignorant.

We must decide which nation we will be.

Broadcast Editor at The Nassau Guardian
Juan McCartney is the senior editor of The Nassau Guardian.
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