Editorial Committee

Editor in Chief: Dianne Daley Assistant Editors: Benito Palomino Tracey Hamilton Gina Morley

Chief Assistants: Sonia Bertran Shane Miller

Assistants: Sharon Service Paulette Warren A vlana Johnson Andrea Walters

Special Acknowledgements:

Cover Design and Cartoons: Melody Cousley

Portraits and Group Photos: John Findlay

Group Graduation Photos: Bryan's Photo Studio

Special Thanks

To the Principal, William A. Roper,for his invaluable support to the Editorial Committee 1990.

Please Send All Correspondence to: THE EDITOR "THE YOUNG ATTORNEY" P.O. BOX 231 MONA CAMPUS U.W.I. KINGSTON 7 JAMAICA, W.I.

The Young Attorney - 1990 ---~• =1-1-1t:•~------

HUMAN RIGHTS AND THE TREATMENT OF HAITIANS IN THE BAHAMAS: INTERNATIONAL AND CONSTITUTIONAL LAW PERSPECTIVES

ALFRED M. SEARS LECTURER BLACK AND PUERTO RICAN STUDIES DEPARTMENT HUNTER COLLEGE CITY UNIVERSITY OF NEW YORK

Attorney-at-law admitted to the Ba r of states New York,New Jersey and Washington D.C. - currently a student at the Norman Manley Law School.

CONTENTS

DELIMITATION OF THE PROBLEM

TRENDS IN THE TREATMENT OF HAITIAN ILLEGAL IMMIGRANTS IN THE BAHAMAS

APPRAISAL

RECOMMENDATIONS

BIBLIOGRAPHY

A. International Human Rights Law and Aliens B. Regional Prescriptions C. Commonwealth Caribbean Constitution Prescriptions

The Young Attorney - 1990

63 to the Bahamas, stated that there is a DELIMITATION OF THE PROBLEM perception in Haiti that the treaty lacks reciprocity and merely provides a Since 1957 the Bahamas Govern­ on diplomacy was being announced in mechanism of exclusion and deporta­ ment has been trying to solve the pro­ 196 7, immigration and police officials tion of Haitians from the Bahamas, in blem of the influx of illegal immigrants were conducting extensive raids within spite of their ties to the Bahamas. 1 from Haiti. Dawn Marshall argues the Haitian and Jamaican communities, While he conceded that this perception that because of the Bahamas geographic eliciting charges of human rights abuse is partly true, he recognized that location, between Haiti and the United in respect to the manner in which the Haiti had no leverage during the nego­ States, many Haitian migrants, fleeing raids were conducted.9 tiation of the treaty, because the dictatorship and the economic and The first attempt by the P.L.P. Haitians in the Bahamas are at the social effects of underdevelopment, Government to achieve a diplomatic mercy of the Government; therefore, use the Bahamas as a transit point on settlement with the Haitian Govern­ it was the desire of the Haitian Govern­ 2 their way to the United States. ment in July, 1967 failed to produce ment to have the Haitians return to In 1980 there were 11,000 Hai­ any agreement. In 1970 a second di­ Haiti with dignity .1 4 However, Amba­ tian nationals officially recorded as plomatic effort was launched for a ssador Charles conceded that, in the 3 living in the Bahamas. Because the treaty regarding illegal Haitian immi­ final analysis, Haiti must create more vast number of Haitians are illegal grants, estimated at that time to be opportunities for Haitians in Haiti, so immigrants and therefore suspicious of about 10,000. This effort also proved that people would not risk their lives dealing with Bahamian officials, census to be a failure. Throughout this period to go where there may be no improve­ figures constitute merely a minimum there were continuing raids by Baha­ ment. I 5 estimate. More reliable estimates have mian Government officials in the Hai­ The treaty also came under attack placed the Haitian presence in the tian community coupled with marked from the Catholic Church in the Baha­ 4 Bahamas around 40,000. The total indifference by the Haitian Govern­ mas. The Rt. Rev. Laurence Burke, 5 population of the Bahamas is 240,000; ment. There were also allegations by Roman Catholic Bishop of the Diocese therefore, the Haitian community con­ the Bahamas Government that the of the Bahamas, characterized the stitutes about 16-20% of the total po­ Haitian Consul in Nassau, Bahamas, treaty as being "ambiguous". Specifi­ pulation of the Bahamas. refused to issue visas to Haitian cally, Bishop Burke pointed out that Between 1956 and 1967 the nationals whom the Bahamian Govern­ the treaty stated that it would give 0 Colonial Government in the Bahamas ment wished to repatriate. I legal status as soon as possible to illegal responded to the growing presence of However, in early 1985 the two Haitian immigrants who were living in illegal Haitian immigrants with periodic Governments again attempted to nego­ the Bahamas prior to December 31, raids by the immigration, customs and tiate another treaty to address the 1980, provided the persons were police officers; vigilance at sea; harsh problem of illegal Haitian immigrants married to Bahamians or working at 6 criminal penalties and deportation. in the Bahamas, estimated at that time the time of the signing of the treaty. In 196 7 the first black mass-based to be around 40,000. The treaty does not say whether nationalist party, the Progressive Libe­ TREATY they must be working with a work ral Party, came to power in the Baha­ permit or illegally. However, the mas. One commentator has described A treaty was ratified in September raids since the signing of the treaty the transition from the white minority 1985. The treaty provided for an am­ have been focused on all Haitians who United Bahamian Party Government nesty period from September, 1985 to did not have a work permit, inclusive to the Progressive Liberal Party Govern­ February, 1986, asking all illegal im­ of Haitians who have been living for ment as "the replacement of the poli­ migrants to register with the Immigra­ over 20 years with Bahamian born 1 tical, social and economic hegemony tion Department. I About 10,000 children. This over inclusive round--up of a white bourgeoisie by a hegemony illegal Haitian immigrants registered. practice seems to violate the letter and of a black bourgeoisie that is complete The treaty also provided that Haitian spirit of the treaty. in the political sector, largely complete immigrants illegally resident in the Bishop Burke therefore called on in the social sector, but still incomplete Bahamas and who arrived before the Bahamian Government to enunciate in the economic sector, where the white December 31, 1980 shall be accorded a clear and consistent policy, beyond 6 bourgeoisie retains a predominant legal status as soon as possible, provided raids and amnesties. I 7 share". The new P.L.P. Government's they meet certain qualifications. 12 Since the signing of this Treaty announcement in 196 7 that it preferred All those arriving after December 31, there have been mounting charges of diplomatic means in solving the prob­ 1980 will be repatriated, unless they human rights abuse against the Baha­ lem of illegal Haitian immigration to are required for employment or are mian Government surrounding the the Bahamas created optimism that a married to Bahamian citizens. 1 3 periodic raids and detention of Haitian more humane and realistic immigration His Excellency Serge Charles, the and Jamaican aliens in the Bahamas. 8 policy was forthcoming. However, Haitian Permanent Representative to It has been alleged that entire Haitian even while this new public emphasis the United Nations and Ambassador families, including Bahamian born The Young Attorney - 1990 64 children, have been detained and de­ to investigate the matter and punish rights organizations both in the Baha­ ported; that Haitians have been sub­ those responsible.2 2 On October 27, mas and in Jamaica as well as by the jected to mass arrangements and de­ 1986, Mr. Evans Francois was recalled Jamaican Government.2 6 position of their cases before the from the Bahamas at the request of 1 7 Bahamian courts and, that Hai­ the Bahamas Government, with the ex­ The prison conditions under which tians have been imprisoned while cuse that Mr. Francois' continued Haitians have been detained in the awaiting trial or deportation in de­ presence in the Bahamas would not Bahamas have not escaped international grading and sub-human prison condi­ serve any useful purpose, as he was at comment. . Amnesty International ex­ 1 tions. a the center of controversy. Under cus­ pressed its belief to Minister of National 3 Security Loftus Roker that prison On July 15th, 1986, the Haitian tomary diplomatic practice ,2 the conditions under which Haitians were Consul in the Bahamas, Mr. Evans Haitian Government had no choice detained constitute cruel, inhuman Francois, apparently after having iden­ but to comply with the Bahamian re­ and degrading treatment in contraven­ tified himself as a diplomat, was him­ quest or have Mr. Francois declared persona non grata. 3 3 tion of Article 5 of the Universal De­ self arrested and briefly detained by claration of Human Rights, and are in Bahamian police officers, while seated On July 17th, 1986, one day after gross violation of the United Nations in his car waiting for his wife who was the arrest of Mr. Francois, about 30 Standard Minimum Rules for the Treat­ in the Nassau airport arranging the Jamaican nationals, upon arrival in the ment of Prisoners. Amnesty Interna­ repatriation of a group of Haitians Bahamas aboard British Airways, were tional urged that a thorough and im­ back to Haiti. 1 9 This incident triggered arrested and detained at the Central partial inquiry be instituted without critism against the Bahamian Govern­ Police Station for allegedly violating delay into conditions under which ment both in Haiti and in the Bahamas. Bahamas Immigration Regulations.2 4 Haitians have been, and continue to Minister of National Security, Prior to July 17th, Jamaican nationals be, imprisoned at Fox Hill Prison Loftus Roker, stated that the police were required to have a minimum of and requested information about those 2 7 officer "acted properly" when he arres­ U .S.$500.00 cash on them upon arrival currently in detention. ted Haitian Consul Evans Francois in the Bahamas. However, this require­ for "parking" in a no parking area at ment was changed to U.S.$700.00 Although most of the criticisms the airport. Mr. Roker stated that "this while the British Airways flight was en of the Current immigration policies of is not the first diplomat who has been route from Kingston to Nassau. Ms. the Bahamas Government have been di­ arrested for breach of the laws of the Sue Lawrence,British Airways manager rected at the current Minister of country in which he was residing ... in Nassau, said she was infonned of National Security, Mr. Loftus Roker, In other words, Mr. Francois' con­ the new regulations at 10:45 pJn. The Mr. Roker claimed that more Haitians tinued breach of traffic regulation British Airways flight landed in Nassau have been given Bahamian status under at 10: 28 p.m. She stated that "I was his administration than at any other by not moving when the officer told advised of the change of entry require­ time since independence in 1973.2 8 him to move is not covered by any ment after the flight had arrived in Mr. Roker disclosed that the following diplomatic immunity, and therefore Nassau."2 5 It would appear that Hai tians were given permanent residen­ the police officer was acting pro­ neither the airlines nor the Jamaican perly. "2 o cy with the right to work: 2 in 1976, passengers were given sufficient notice 14 in 1980, 19 in 1981, 8 in 1982, 5 The Haitian Government sent a of this change in the required amount. in 1983, 56 in 1984, 32 in 1985, and Diplomatic Note to the Bahamas It was reported that one of the detained 20 for the first four months of 1986. Government protesting the arrest of Jamaicans was the wife of a Bahamian He revealed further that the following Mr. Francois, noting that the Bahamas citizen. The Jamaicans were held in number of Haitians received Bahamian Government was not without respon­ detention for two days and flown back citizenship: 1 in 1983, 7 in 1984, and sibility for the anti-Haitian sentiment to Jamaica on July 19th, despite offers in 1985 (Mr. Roker's first full year as within the country which could have by Bahamians to stand as sureties or National Security Minister) 88, from serious repercussions for the future of to supply the required amount. Al­ January to May of 1986 18 Haitians the Bahamas. 2 1 On July 23, 1986, though the Government maintained had received citizenship. Thus, from the Bahamas Government sent the that the Jamaicans were not "under independence in 1973 to June 1986, Haitian Government a Diplomatic arrest", the incident sparked signifi­ according to Mr. Roker, 315 Haitians Note expressing regrets about the cant protest and charges of human were given Bahamians citizenship. arrest of Mr. Francois, with a promise rights abuse by community and human

The Young Attorney - 1990

65 course, within the discretion of the TRENDS IN THE TREATMENT OF It was pointed out to the court that HAITIAN ILLEGAL IMMIGRANTS many of the detainees had been in the court. The magistrate in Eight Mile IN THE BAHAMAS Bahamas from 6 to 30 years, with deep Rock was therefore incorrect to re­ fuse to at least consider the facts of The Bahamian response to the roots in the Grand Bahama community. each case in determining whether any "Haitian Problem" has manifested a For those who pied not guilty to the of the detainees merited bail pending dangerous trend in the administration charges, the magistrate refused to en­ trial of their cases. Indeed, this was of justice, the enforcement machinery tertain the bail applications made on the view taken by Bal1amas Supreme of the state and the popular society their behalf. This episode and the often Court Justice Gonsalves-Sabala, who which raises serious concerns about prolonged detention, which is typical on June 15th in reference to the same constitutional rights, the effectiveness of the aftermath of raids in the Haitian detainees, on the issue of bail, held of immigration and development poli­ community in the Bahamas, raises that: cies, and the current political direction serious constitutional issues about the Bail will be granted those appli­ of the country. right to counsel before answering a cri­ cants who have established long The frequent raids directed at minal charge, the right to bail while and continuous or otherwise sub­ Haitians primarily, and other illegal awaiting trial and the procedural due stantial periods of residence and/or aliens normally result in the wholesale process right to individual adjudication. were ever granted work permits in detention of large groups of persons, As Justice Georges held and was the past, or have significant family with disposition of their cases following affirmed by the Privy Council, in Re ties or may be entitled to Bahamian an irregular pattern, thus raising issues Thornhill, the right to counsel is a right citizenship as claimed.32 of due process and fairness. Such a case which "arises immediately after arrest Justice Gonslaves-Sabola commented . occurred on May 30, 1986, when the and that right should be afforded that an illegal immigrant, Bahamas immigration authorities, without delay." This is a right which independent of the constitution, has working along with police and defense the Bahamas Constitution, Article 19 locus standi equally with a Bahamian force officers,conducted an alien round­ (2), extends to all persons in the citizen or a permanent resident to apply up on the authority of general warrants country and identifies as being an important aspect of the liberty interest for bail. In light of this apparently in Pinders Point, Lewis Yard and the of all persons to be free from arbitrary clear principle, it unclear why the Hunters area in Grand Bahama. Accor­ arrest and detention. Therefore, the magistrate in Eight Mile Rock refused ding to the Freeport News, about 80 29 failure to allow the detainees in the in­ to entertain bail application for the Haitians nationals were arrested. stant case adequate legal counsel before detainees who may have been able to The arrests were limited exclusively to qualify under the indicia of anchor.age males. It was reported that some of pleading to the charges raises a serious in the community. Needless to say, those arrested had been in the Bahamas constitutional concern. the unnecessary incarceration of these for a long period of time, had accumu­ The second concern was the refusal detainees for two weeks disrupted lated property and had children born of the magistrate to either entertain the their family and employment relations in the Bahamas.30 It was further re­ presentation of mitigating circumstan­ as well as those of the wider Grand ported that the immigration authorities ces on behalf of those who pied guilty Bal1ama community. executed their task professionally and or to entertain the bail applications of Moreover, in the course of render­ made attempts to have the Haitians those who pied not guilty. Since an ing his decision on the bail application, secure their possessions before taking immigration offense in the Bahamas is Justice Gonsalves-Sabala observed that them into custody. 3 1 After having a criminal offense, unlike in the United " ... the applicants appear to be affor­ been processed, the detainees were States where it is, with some exceptions, ded accommodation that provides bused to the Eight Mile Rock magis­ a civil offense, it has to be dealt with somewhat less than ordinary amenities trates court before Magistrate Meerabux in accordance with the Bahamas that a detention should have. The The court proceedings began at Criminal Procedure Code Act, 1968, Prison Rules dealing with accommoda­ 6:45 p.m. which in Section 69 (1) states: tion are themselves not all observed." Where any person, other than a Right To Counsel, Bail And Thus, the failure of the magistrate in person accused of murder or trea­ Individual Adjudication Eight Mile Rock to accord the detain­ son, appears or is brought before a ees their legal rights may have put un­ court, at any time or at any stage The detainess were arraigned 10 at necessary pressure on the prison facili­ in the proceedings before such a a time, some were not represented by ties as well as deni~d the detainees their court to give bail, such a person legal counsel. Those who pled guilty legal rights. may be admitted to bail with or of illegal entry into, or overstaying The third aspect of this episode their legal stay in, the Bahamas were without a surety or sureties. involves the mass arraignment of the fined $150.00 or two months imprison­ Therefore, all criminal offenses, detainees. Such ad hoc procedures ment and early deportation. Sentence with the exc;eption of murder and trea­ frustrate the legal counsel's ability to was apparently done without consi­ son, are bailable offenses. Whether bail adequately represent his/her clients deration of mitigating circumstances. is granted in a particular case is, of and it undermines the constitutional The Young Attorney - 1990 66 due process guarantees. According to Haitian population has been steadily mian unemployment and inadequate the Bahamas Constitution, Article 20 increasing from 1,000 in 1957 to over social services. Such a fear was voiced (1): 40,000 in 1986. Therefore, the current by Mr. Henry J. Bowen, former Pro­ immigration policies do not serve as an If any person is charged with a cri­ gressive Liberal Party Parliamentarian, effective deterrent to migration. In­ minal offence . . . the case shall who in a letter to the editor stated: deed, many of those Haitian nationals be afforded a fair hearing within a deported tend to return after a short As one of the founding fathers of reasonable time by an independent interval to the Bahamas. 3 4 Moreover, the Bahamian nation, it is my and impartial court established by the current policies tend to isolate and duty to speak out on this subject. law. discriminate against the Haitian com­ And it seems to me that we Baha­ The issue in reference to the in­ munity. Given the size of the Haitian mians can either support Mr. stant case is whether the mass arraign­ community in the Bahamas, about 1/ 5 Roker [Minister of National Se­ ment accords with the standard of "a of the total population, the Bahamas curity] ... or we can start learning fair hearing" and due process of law. can ill afford to alienate such a large creole . . . The Bahamas are a Justice Aubrey Fraser, while on the segment of the population. Such a natural for colonization ... The Trinidad Court of Appeal, defined pro­ course is not only dangerous for domes­ villains are those who flagarantly cedural due process of law as " ... the tic stability, it is also fool-hardy. While and knowingly violate Bal1amian rejection of arbitrariness in procedure the first generation of Haitians are like­ law. And if there is a human rights or adjudication and seek to establish ly to remain docile, the second and third issue here, it is my right to enjoy the invariability of fair procedure in generations, who will be native born my home, without being molested addition to a fair hearing in accordance Bahamians will not accept the denial by uninvited intruders. 3 5 with the principles of natural justice. of their rights or the discrimination 1 1 5 It can be argued that the Haitians, perpetuated against themselves and though illegally resident in the Baha­ their parents. More frightening, how­ This Bahamian perception of the mas for between 6 to 30 years, with ever, is that the continued isolation of threatening Haitian presence has to a Bahamian born children, permanent the Haitian community will only pro­ great ex tent conditioned official Baha­ jobs, property and other attachments duce a permanent underclass in Baha­ mian response. In fact, such a percep­ to the country deserve to be accorded, mian society, which will eventually be tion seems to have influenced the Baha­ at the very least, due process of law. a menace to stability as it would have mas Government when in early Sept­ no stake in Bahamian domestic stabi­ ember 1986 it was reported that the lity. Bahamas Ministry of Education sent a circular to the principals of public What is distinct about the current schools that students of Haitian paren­ debate on the "Haitian Problem" with­ tage were not to be registered until in the Bahamas is the almost total lack their parents' status was determined of national discussion of the significant and that Haitian school children were contribution of Haitian labor to the sent home from the Golden Gate building of the Bahamas, especially in Primary School in the Carmichael area forestry, farming and tertiary trades, 1 1 8 APPRAISAL in Nassau. Mr. Donald Symonette, such as tailoring, barbering, gardening President of the Bahamas Union of The issue facing the Bahamas is and domestic work, areas which most Teachers, in response to this report, whether most of the Haitians in the Bahamians are unwilling to undertake. stated that "We have told our teachers Bahamas have a moral and legal right This lack of appreciation is most sur­ that our job is to teach and we are not to be in the Bahamas, given their con­ prising since many of the leading going to discriminate against anyone." tribution to the country and the fact Bahamian citizens in Parliament and that all of their children were born in the business sectors are themselves These reports of discrimination the Bahamas and the fact that the second generation Bahamians, as many against Haitian school children were Government has given work permits to of their parents are recent immigrants confirmed by the Grand Bahama these people for over 25 years. The to the Bahamas. Because there is no Human Rights Association which stated second issue is whether these circum­ public acknowledgement of the Haitian that "from our investigation it appears stances constitute prima facie the effec­ contribution, Bahamians tend to view that the Ministry of Education is requi­ tive nationality of the host state the the Haitian community as a parasitic ring children born of any foreign non­ denial of which could create a breach element. Bahamian parent to leave the public of natural justice. schools at which they are already re­ There is also a growing Haitian gistered and/or refusing registration Since 1957 the Bahamas Govern­ phobia prevalent in the Bahamas, which to any such child during this current ment has been rounding up and depor­ could explode into violent confronta­ academic year". The Association ting illegal Haitian immigrants, but the tion, as Haitians are blamed for Baha- argued that this administrative action

The Young Attorney - 1990

67 violated the Bahamas Education Act, less it furthers some substantial failure to implement an effective Chapter 23 ( 4), which states, inter alia, goal of the State ... If the State national development program to ab­ that the Minister shall "promote the is to deny a discrete group of in­ sorb the 5,000 plus high school stu­ education of the people of the Baha­ nocent children the free public dents graduating annually. It has mas . . . to enable the children of the education that it offers to other also been alleged that the timing of Bahamas Islands to understand the children residing within our bor­ the raids have tended to coincide has privileges and responsibilities as mem­ ders, that denial must be justified with periods of political crisis within bers of the Community, to contribute by a showing that it furthers some the Bahamas. 40 If these allegations to the well being and progress of the substantial State interest. No such are true, it is short-sighted and will Bahamas by the full development of showing was made here. Accord­ only increase the already intolerable their natural abilities and to earn an ingly, the judgement of the Court isolation of the Haitian community. adequate livelihood as adults". The of Appeals in each of these cases Should the current trend of more raids, Association further contended that is affirmed. 3 8 irregular judicial proceedings and pro­ this prohibition against Haitian school Justice Powell,. in his concurrence, longed detentions in substandard con­ children violated the Bahamas Consti­ stated further: ditions continue, the Bahamas may tutional guarantee, specifically Article The classification at issue deprives slide into authoritarianism and civil 15 (b), of equal protection of the law. a group of children of the oppor­ conflict between Bahamians and Hai­ Mr. Rawle Maynard, a Bahamian tunity for education afforded all tians. Needless to say, such a course lawyer, argues that given the Haitian other children simply because would have devastating implications contribution to the Bahamas, it is un­ they have been assigned a legal for the rights of Bahamians as well as fair to claim that they are a burden to status due to a violation of law aliens in the Bahamas. On the other the Bahamas. Moreover, he observes by their parents. These children hand, the Bahamas Government must that since Bahamians pay only indirect thus have been singled out for a attempt to address this problem in taxes, non Bahamians pay more taxes, lifelong penalty and stigma. A a rational manner that balances res­ in the form of stamp duty on convey­ legislative classification that threa­ pect for human rights and the maximi­ ances, land tax in the Family Islands tens the creation of an underclass zation of value sharing by all persons and departure and hotel taxes for of future citizens and residents within the Bahamas with the Govern­ ment's legitimate concern with control tourists.3 7 cannot be reconciled with one of A similar discriminatory measure the fundamental purposes of the of ingress into and egress from the was adopted by the Texas Legislature Fourteenth Amendment ... But country and the regularization of the in May 1975 to withhold from local it can hardly be argued rationally status of those within the country. school districts any state funds for the that anyone benefits from the The current policies and administrative education . of children who were not creation within our borders of a practices indicate possible discrimina­ "Legally" admitted into the United subclass of illiterate persons many tion against Haitians, in particular, and States and to deny enrolment to such of whom will remain in the State, a movement towards the derogation of children. The United States Supreme adding to the problems and cost personal liberties and constitutional Court, in Plyer v. Doe, held that this of both State and National Govern­ guarantees. law violated the Equal Protection ments attendant upon unemploy­ Clause of the Fourteenth Amendment. ment, welfare and crime. 3 9 RECOMMENDATIONS Justice Brennan, speaking for the These Haitian children are not res­ First, an agency should be estab­ majority, status; ponsible for their status, to exclude lished to implement, in an effective Section 21.031 [the Texas law] them from Bal1amian public schools and nondiscriminatory manner, the re­ imposes a lifetime hardship on a will stigmatize them by keeping them gularization of the status of those aliens discrete class of children not illiterate for the rest of their lives. in the Bahamas who have acquired accountable for their disabling Needless to say, such exclusion, apart what Professor Ian Brownlie described status. The stigma of illiteracy will from the dubious constitutional vali­ as "prima facie the effective nationality mark them for the rest of their dity, is likely to increase the already of the host state" .4 1 Using the cri­ lives. By denying these children intolerable isolation of the Haitian teria of effective nationality, as deve­ a basic education, we deny them community in the Bahamas. This con­ loped by the International Court of the ability to live within the struc­ tinued isolation is also politically un­ Justice in the Nottebolm case, many ture of our civic institutions, and wise, as it will result in the creation of of the Haitians in the Bahamas may foreclose any realistic possibility a permanent underclass with no stake qualify by the criteria of habitual re­ that they will contribute in even in the progress and development of sidence in the Bahamas, the Bahamas the smallest way to the progress Bahamian society. is the center of their interests, their of our Nation ... In light of these Moreoever, some observers have attachment to Bahamian spouses and countervailing costs, the discrimi­ alleged that the Haitian community Bahamian born children and other nation contained in S2 l .031 can in the Bahamas is also used as a scape­ demonstrations of attachment to the hardly be considered rational un- goat for the present Government's Bahamas. The policy rationale of such The Young Attorney - 1990

68 a course of action would be the effec­ zing Bahamian businesses, and that sumption that is often given to the tive integration of the Haitian commu­ Haitians constitute the major labor State when in collision with individual nity into Bahamian society. The rea­ pool for agricultural production, rights. sons justifying integration of the construction, domestic and support One manner in which this concern Haitian community were eloquently services in the hotel industries. More­ can be addressed is through the estab­ stated by Mr. Jethro Turner, in a letter over, Mr. Coakley observed that the lishment of a law review journal in the to the editor, who reasoned that: barbering and tailoring trades in Grand Bahamas, which would strengthen the The logical end process of integra­ Bahama are almost exclusively Haitian appraisal function of law and establish tion [ of the Haitian community supplied. He concluded that the a nexus between law and the Bahamian in the Bahamas] would be the de­ Haitians came and made a cheaper pro­ society. Professor Chen argues that "In velopment of a national plan to re­ duct with competitive quality and tha't an open, democratic ,pluralistic society, settle outlying islands and make the constant raids are disrupting the such an appraising function is vital".45 them productive again, to estab­ local economy of the island, as Baha­ This function of evaluating the per­ lish a pool of agricultural man­ mians have not come forward to fill formance of law in society should in­ power and to use this new labour vacancies of deported Haitians. 4 3 volve lawyers, law professors, law to harness new resources and build It is also clear that this national students, the media and the public. a bigger and more secure future education drive should address the ex­ Judicial decisions should be subject for us all. Such a policy would pectations that many Bahamians have to critical evaluation by the legal avoid all of the futility and human of the post-independent society and academic community. Such a journal misery of the present approach the general Bahamian aversion to agri­ could provide a critical perspective of which relies solely on punitive cultural and technical labor. The in­ judicial decisions and offer ways by measures without the co-operation flated expectations that many Baha­ which law can be made to increase of the Haitian Government, and mians have cannot be met within the human dignity and personal liberties. carries with it a threat to every limited tourist-based economy; thus, Professors McDougal and Reisman Bahamian's freedom and security. posit that lawyers, as specialists in 42 people must be resocialized to enter­ tain careers in the fisheries and agri­ decision, perform five intellectual tasks: cultural sectors. With a shift in Baha­ "they are clarifying goals, testing past mian expectations, there would be a trends in decision for conformity to Second, I recommend that the decrease in the demand for Haitian those goals, understanding decisions Bahamas Government launch a national and other immigrant labor to do work by reference to the context of con­ educational drive (inclusive of school that is necessary but which Bahamians ditions in which the decisions were curricula from primary to college refuse to do. made, trying to predict alternative school levels, television, radio, public trends in future decision and devising posters and public pronouncements by alternative courses of action." 46 political, religious and social leaders) Therefore, the Bahamas Bar Associa­ to increase the consciousness and ap­ Third, I recommend that the legal tion must lobby for the harmoniza­ preciation of the Haitian and other community_ in the Bahamas mobilize tion of the treatment of aliens, parti­ recent immigrants' contribution to the behind a package of legal reforms. Mr. cularly Haitians, with the established Bahamian society. Such a national Maurice Glinton, a Bahamian barrister, norm of nondiscrimination under inter­ program would help to diffuse the observes that the lack of a public law national human rights law. growing Bahamian hostility to immi­ library constrains the training of law­ grants in the Bahamas. The pervasive yers and affects the proficiency of stereotypical Bahamian perception of 44 practicing attorneys. There are only The legal profession in the Baha­ the Haitian as a parasitic group, unless a small number of private fully equip­ mas has been the target of much criti­ quickly eradicated, could serve as fer­ ped libraries; therefore, the legal pre­ cism lately. Minister of Works Darrell tile source for fascistic appeals by un­ paration and exposure of Bahamian Rolle, himself a lawyer, speaking at scrupulous politicians and agitators. lawyers to developing common law the Call of two new attorneys to the However, this popul

69 possible. 47 who would dismiss as merely a 'litigious' the improvement of the quality Some lawyers have expressed frus­ propensity the people's frequent jour­ of life as well as the advancement tration with the apparent indifference neys to the courts to seek redress for of human growth and development of the Bahamas Bar to law reform and abuses against their property rights, while facilitating the reinforcement of commonsense and the refinement human rights abuses in the Bahamas. their character or their physical states. of sensibility. 5 0 Such frustration was voiced by Mr. For they know that their very status As Professor Nettle ford reminds us, Frederick Smith, an executive member as persons dating back just over 150 the legal emancipation of enslaved of the Bar, who recently stated before year as citizens since [ emuncipation] , blacks was to make it possible for the the Bahamas Law Guild: rests squarely on . . . law."· 4 9 Pro­ development of a society of self direc­ Our Bar which is supposed to be fessor Nettleford argues further that ting persons, although material dispos­ the bulwark and watchdog of the law can serve a creative function in session, social snobbery and cultural Constitution and which stands be­ Carib bean societies: subjection continue. Therefore, be­ tween the executive and the people While there are lim its to the opera­ of the country is disunited, dis­ tional capability of the law , these cause the law has been so crucial to illusioned, [ intimidated] and frus­ need not be imposed with a rigo­ social development of the Common­ trated. The Bar right now is, for rous temper born of other people's wealth Caribbean, the application of the most part, a fraud.48 traditions and idiosyncracies. The law must be dynamic and compassion­ Mr. Smith encouraged his colleagues "rigour", that all systems of rules ate, as an attempt is made to shape a in the Bar to agitate for law reform and regulations must have, should new society out of colonialism. The and improvements in the administra­ be made to emerge out of the sub­ Haitian immigrant problem in the tion of justice. stance of the social phenomena Bahamas has presented the Bahamas with a crucial choice of whether the However, law reform should not which shape and are in turn shaped law will be used to enhance human only concern lawyers. As Professor by the lives of those for whom "the dignity and personal liberties or to legi­ Rex Nettleford observed, "To the law" is enacted and operates. While timate popular prejudice and discrimi­ mass, 'law' is very a discrete matter in part a mechanism to articulate nation against an insular and discrete that describes and determines their established facts and reality, the minority. ve ry existence. It is only the cynical law can serve as stimulus toward

The Copyright in this article is held by the Author. No part of it may be published or used without prior consent of the Author, and with acknowledgement.

With the compliments of

'Services(1984) 'Lid.

Savanna-la-mar: (Main Office) Ocha Rios Telephone: 955-2642 3 Skibo Avenue Kingston 10 May Pen Tel: 926-4101 Mandeville Tel : 986-2133 926-7819 Tel : 962-1697

The Young Attorney - 1990

70 FOOTNOTES

I. Dawn Marshall, The Haitian Prob­ such instances of refusal by the Court that he had found that the lem: Illegal Migration to the Baha­ Haitian Consul in Nassau to issue Haitian detainees had a very mas, p. 99 (1979). visas to Haitian nationals were common fungal rash on their 2. Ibid., p. 98 due either to administrative prob­ skin, particularly in the groin area 3. Bahamas Census, 1980 lems or a determination by Haitian and most of them complained of 4. See The Grand Bahama Human authorities that the status of many generalized itching of the skin and Rights Committee, Press Release, of these Haitian nationals should scabies was noted on one of the October 3, 1986. be decided in a Bahamian court individuals. In establishing causa­ 5. Bahamas Census, 1980. of law, as many of them had been tion between these diseases and vigilance at sea; harsh criminal in the Bahamas for many years, the conditions within the prison, 6 penalties and deportation. with Bahamian born children, pro­ he stated that "They are naked ex­ 6. Marshall, op. cit., pp. 98-106. perty in and other ties to the cept for undershorts. They have a 7. Colin A. Hughes, Race and Politics Bahamas. Interview, November greater opportunity for personal in the Bahamas, p. 208 (1981). 18, 1986 New York, U.S.A. contact. The conditions foster 8. P.L.P. Government Senator, Dr. 11. Treaty Regarding Illegal Immigra­ them to clutter together at the Doris Johnson, argued that because tion. September, 1985, Common­ entrance of the cells rather than so many Haitians were raising wealth of the Bahamas-Republic sit on their bunks. Hence closer families in the Bahamas "expulsion of Haiti. See Annex 2 (d) for the body contact, hence greater risk is out of the question". She em- amnesty provision. of possible disease." The Tribune, phasized the necessity for the edu­ 12. Ibid., Article 2 (3). The qualifi­ July 23, 1986. cation of Bahamians and Haitians cations are that the immigrant 19. See Vienna Convention on Diplo­ in order to create better under­ must not have a criminal record; matic Relations, 23 U.S.T. 3227; standing between the groups. The must have a job at the commence­ T.l.A.S. 7502; 500 U.N.T.S. 95. Tribune, April 29, 1967. Father ment of the treaty; or must be The arrest and detention appear Guy Sansaricq, speaking for the married to a Bahamian citizen; or to be in direct contravention of Committee to Promote Haitian­ must own real estate in the Baha­ international law regarding immu­ Bahamian Relations,suggested that mas. nity of diplomatic agents. Article the Haitian community be absorb­ 13. Ibid., Article 2 (5). 29 of the Vienna Convention ed into the Bahamian community, 14. Interview with His Excellency states: "The person of a diplo­ not isolated, through a program Serge E. Charles, Permanent Re­ matic agent shall be inviolable. of adult education to familiarize presentative for the Republic of He shall not be liable to any form Haitians with Bahamian culture Haiti to the United Nations and of arrest or detention. The re­ and institutions. To achieve a Ambassador to the Common­ ceiving State shall treat him with more realistic immigration policy wealth of the Bahamas. November due respect and shall take all appro­ towards the Haitians, he recom­ 18th I 986, New York, United priate steps to prevent any attack mended that alien resident status States. be given to Haitians already in the on his person, freedom or dignity." 15. Ibid. 20. August 18, 1986. Bahamas, on the theory that a The Tribune, 16. Bishop Laurence Burke,"The Posi­ 21. Interview with His Excellency Haitian with a resident alien status tion of the Catholic Church on Serge E. Charles, Permanent Re­ would become immediately and the Haitian Problem", The Grand genuinely interested in the progress presentative for the Republic of Bahama Sun, March 29, 1986. of the country. Moreover, he Haiti to the United Nations and stressed the need for Haitian fabor Ambassador to the Commonwealth 17. The Freeport News, May 21, I 986. in the farming, wood pulping, of the Bahamas. November 18th 18. Dr. Marcus Bethel, testifying as an tourism and construction sectors 1986, New York, United States of expert medical witness before the America. of the Bahamian economy. Quoted Bahamas Supreme Court,described 22. Ibid. in Marshall, op. cit., p. 109. the conditions at the Fox Hill 9. Marshall, op. cit., p. 109; J.P.H. 23. According to the Vienna Conven­ Prison in Nassau where Haitian Barratt, Grand Bahama, p. 107 tion on diplomatic Relations, immigrants are usually detained as Article 9 (I): "The receiving State (1982). " ... unhygienic and conducive to 10. His Excellency Serge Charles, Hait­ may at any time and without hav­ infectious disease problems". After ing to explain its decision notify tian Ambassador to the Bahamas examining 48 of the Haitian the sending state that the head of and Permanent Representative to detainees on July 15th and 17th, missing or any member of the the United Nations, counters that 1986, Dr. Bethel reported to the persona non grata or that any The Young Attorney - 1990

71 other member of the staff is not ton was gathering data on the 46. McDougal and Reisman, Interna­ acceptable. In any such case, the incident in preparation of a Diplo­ tional Law in Contemporary sending State shall, as appropriate, matic Note to be sent to the Bairn­ Perspective, 3 ( I 98 I). either recall the person concerned mas Government. or terminate his functions with 27. The Tribune, August 12, 1986. 47. Sch. Human Rights the mission ..." Therefore, the 28. The Tribune, June 9, I 986. 48. Annual 27 at p. 31 (1983) Bahamas was exercising its rights 29. Simon Lewis, "80 Haitian 49. Rex Nettleford, ''The Law as as a sovereign when it had Mr. Nationals Rounded Up in Early Creative Agent," The Sunday Francois recalled. Whether it was Morning Raids on GB," Freeport Gleaner, September 28, 1986. politically wise is another issue. News, May 30, 1986. 30. Ibid. 50. Ibid. 24. The Tribune, July I 8th, 1986. 31. Ibid. 25. Ibid. 32. The Applicants v. Minister of 26. Mr. Frederick Smith, Esq., a civil National Security (1986) 700 rights lawyer in the Bahamas, after Bahamas Supreme Court (Crimi­ interviewing the detained Jamaican nal Side) 8. nationals on July 17th, declared: 33. Lassalle v. Attorney-General "Legally, the Immigration Depart­ (1971) 18 W.l.R. 379,406 H.-1. ment has no authority to do what they are doing. When an alien 34. Marshall, op. cit., p. 58. arrives at a port of entry, the Im­ 35. Henry J. Bowen, The Tribune, migration Department must either September 5, 1986. say yes you can come in and im­ pose certain conditions, or say no. 36. The Tribune,September 3, 1986. The Immigration Department has 37. Interview with Mr. Rawle May­ no authority to detain them if nard, Bahamian barrister, Free­ they have not committed any port, Grand Bahama, June 22, offense. For the Immigration 1986. Department to say that these people are not under arrest they 38. Plyer v. Doe, 457 U.S. 223,224, can leave . . . civil liberties are 230(1981) being trampled upon day in and 39. lbid.,atp.241 day out in this country ,Bahamians 40. Interview with Ambassador Serge and non Bahamians." Mr. Smith Charles, op. cit. posited that "Speaking strictly, 41. Ian Brownlie, Principles of Public these people can sue for damages International Law p. 520 (1979) due to illegal detention." However, he said the detainees were so petri­ 42. Jethro Turner, "Should We Ex­ pel! or Integrate Existing Haitian fied they were afraid to take legal Immigrants?"' The Freeport News action to seek their release, lest the May 14, 198G. Immigration Department refuse them entry to the Bahamas again. 43. luterview with Mr. Charles Coak­ The Tribune, July 19th, I 986. ley, President of the Grand See also Jamaat-ut Islan , the Isla­ Bahama Chamber of Commerce. mic Movement in Bahamas, issued Freeport, Grand Bahama, June a press release condemning the 25, I 986. treatment of the Jamaicans. They 44. Interview with Mr. Maurice argued that "It is hypocritical for Glinton, Bahamian human rights the Government to ask Bahamians lawyer. Freeport. Grand Bahama. to support a boycott against apar­ June 19. 1986. theid in South Africa but stepping 45. Lung-Chu Chen, "Institutions back when it comes to humane specialized to the Protection of treatment of Haitians and Jamai­ Human Rights in the United cans." The Tribune,July 21, 1986. States". lN.Y.L. According to The Tribune, July 23, 1986, the Jamaican Embassy in Washington was gathering data The Young Attorney - 1990

72