A group of foreign-born fishermen, their Bahamian spouses and commercial fishing enterprises have taken legal action against the government, claiming that the Fisheries Bill, 2020, which specifies that only Bahamian citizens are permitted to engage in commercial fishing in The Bahamas, is unconstitutional and discriminatory.
The originating summons, filed on Friday, lists Minister of Agriculture and Marine Resources Michael Pintard, Minister of Financial Services, Trade and Industry and Immigration Elsworth Johnson, and Attorney General Carl Bethel as respondents.
The applicants are Morazan Zunig Jackson and Jaime Reynaldo Perez, who are foreign spouses of Bahamian women; their wives, Maria Jackson and Raquel Anthonya Major-Perez; and a number of commercial fishing enterprises – Fish Farmers Ltd., Three Ro Bahamas Ltd., 3 Kids Corp Bahamas Ltd., Audley Seafood Ltd., Percival Roberts (D/B/A Geneva Brass Seafood) and Paradise Fisheries Ltd.
The applicants claim that the prohibition of foreign workers in the commercial fishing industry is “draconian”.
“Total prohibition is not rationally related to the objects of the acts, disproportionately and unfairly balances the fundamental rights of the applicants and the community and is, therefore, not reasonably justifiable in a democratic society,” the originating summons reads.
The applicants are seeking a permanent injunction to prevent the enforcement of the provisions of the bill, which bar non-Bahamians from working in the commercial fishing industry, as well as damages.
They are also seeking an injunction pending the outcome of the legal action, so that the applicants can continue to work in the interim, as well as a stay of the implementation of the bill until a determination is made.
The applicants claim that the bill discriminates against Bahamian wives of foreign fishermen, and violates the constitutional rights of foreign spouses employed in the commercial fishing sector.
“…Sections 31 and 32 of the Fisheries Act, 2020, and the Immigration (Amendment) Act, 2020, constitute arbitrary and discriminatory treatment and effect on second and fourth applicants, Bahamian citizen women whose husbands hold spousal permits or permanent residency certificates, and the denial of protection of the privacy of their homes resulting in the deprivation of the partial or total support of their alien husbands and a denial of their protection from degrading treatment…,” the summons reads.
“…Sections 31 and 32 of the Fisheries Act, 2020, and the Immigration (Amendment) Act, 2020, breach the constitutional rights of the first and third applicants, holders of spousal permits or permanent residency certificates with the unrestricted right to work, by prohibiting them from continuing to practice their profession as commercial fishing divers in The Bahamas…”
The summons claims that those provisions are “unlawful, discriminatory [and] remove the protection of the law and contravene the fundamental rights” of the foreign spouses, the first and third applicants, “in as much as the provisions require [them] to become a citizen of The Bahamas in order to continue to work in their profession as commercial fishing divers in The Bahamas and to support their families, without having committed any criminal offense.”
The summons also claims that the bill deprives the foreign spouses of their “reasonable expectation to continue practicing their profession as commercial fishing divers in The Bahamas, as they have habitually and lawfully done in The Bahamas as the holder of a spousal permit and/or permanent residency certificate, with a compressor license from the Department of Marine Resources, without affording them a right to be heard in breach of natural justice and their constitutional right to due process and the protection of the law as stipulated, inter alia, by articles 15 (a), 19 and 20 (4) of the constitution”.
The applicants say the bill also discriminates against Bahamian owners of commercial fishing vessels, who employ foreign workers.
The summons claims that sections 31 and 32 of the Fisheries Act, 2020, are “unlawful and discriminatory and contravene the fundamental rights of the fifth, sixth, seventh, eighth, ninth, and tenth applicants, set out in, inter alia, Articles 15, 19, 20 and 26 of the constitution, in as much as the provisions prohibit them as commercial fishing enterprises based in Nassau, Bahamas from contracting with or employing the husbands of Bahamian women and who hold spousal permits or permanent residency certificates with an unrestricted right to work”.
It notes that the Nassau-based enterprises should not be compared to those on other islands where there is “a pool of abundant and available professional commercial fishing divers”.
The applicants also claim that the enterprises expected to have been consulted before the amendments to the act were made. They noted that Pintard, in an official statement, “recognized the need to take into account the views and wishes of all of the stakeholders in the commercial fishing industry on the subject acts”.
They also claimed that there were discussions between the Bahamian-owned enterprises and Pintard about the establishment of a dive training program at the National Training Agency, where the enterprises would provide apprenticeship training on their boats and “a suggested curriculum in commercial diving and fishing to meet current and future demands of commercial Bahamian fishermen operating out of Nassau, Bahamas”.
The Fisheries Bill, 2020, and the Immigration (Amendment) Bill, 2020, were recently passed in both houses of Parliament.