PRESSย RELEASE Issued by the PEOPLESย EMPOWERMENTย PARTY, DAVIDย COMISSIONG, President, Peoples Empowerment Party
If Prime Minister Freundel Stuart has his way, Barbadians will be virtuallyย the only people on the face of the earth who are obligated to be fingerprinted by their own Government every time they attempt to leave their own country or to return to their own country!
No American citizen is fingerprinted by the US Government when he or she attempts to leave or return to the USA! No British citizen is fingerprinted! No Canadian citizen! No Trinidadian, Jamaican, Cuban, Venezuelan, Chinese or Indian citizen is fingerprinted by their Government when they attempt to leave or to return to Trinidad, Jamaica, Cuba, Venezuela, China or India!
So why does Mr. Freundel Stuart and his Democratic Labour Party (DLP) Administration wish to fingerprint Barbadians every time they travel, and who do they propose to give those collected fingerprints to?
If it hasnโt been said before, let me be the first to declare it:- Prime Minister Freundel Stuart’s so-called โImmigration (Biometrics) Regulations, 2015โ are a national disgrace!
Every conceivable thing that could be wrong with and about these Regulations that Mr. Stuart has purported to make is wrong!
To begin with, the โpoliticsโ of the so-called โRegulationsโ are wrong! In a supposedly free and democratic society, Stuart chose to foist these โRegulationsโ on an unsuspecting populace without any advance notice or public discussion! Just imagine โ โRegulationsโ that purport to denude the citizenship rights of Barbadians and to substantially infringe Barbadiansโ constitutionally guaranteed right of โfreedom of movementโ are made in secret and without any reference to the Barbadian public!
Secondly, Mr. Stuart and his legal advisors are so inept that the โRegulationsโ are also procedurally wrong! Apparently, Stuart and company were so intent on shrouding these โRegulationsโ in secrecy that they failed to follow the clearly stipulated legal procedure for making such Regulations!
The โRegulationsโ are also in breach of both the Constitution of Barbados and of fundamental principles of International Law that frown upon any measure that has the effect of prohibiting a person from being able to return to his or her native country.
It should be noted that the long established โrightsโ of the Barbadian people in relation to this matter of their freedom to leave and return to their native country are as follows:-
ยทย ย ย ย ย “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 a permanent resident.”
ยทย ย ย ย ย “Section 22 of the Constitution of Barbados
1. No person shall be deprived of his freedom of movement, that is to sayโฆthe right to enter Barbados, the right to leave Barbadosโฆ
3.ย ย ย Nothing contained in or done under the authority of any law shall be held toย ย ย ย ย be inconsistent with or in contravention of this section to the extent that the law in question makes provision โ
a) for the imposition of restrictions on โฆ any personโs right to leave Barbados that are reasonably required in the interests of defence, public safety or public order;”
(Note:- It should be noted from the foregoing that the Constitutional right of citizens of Barbados to enter Barbados is absolute and unfettered, while the right of citizens to leave Barbados may be restricted in the interest of defence, public safety or public order.)
Now, let us consider the details of and the circumstances surrounding the so-called Immigration (Biometrics) Regulations 2015. The facts pertaining to these Regulations are as follows:-
1) On the 17th of April 2015 Prime Minister Stuart โ in his capacity as Minister Responsible for Immigration โ formulated or โmadeโ the so-called โImmigration (Biometrics) Regulations, 2015โ. (Please note that formulating or โmakingโ regulations is just the initial step in the process of โenactingโ regulations โ they also have to be laid in Parliament and published in the Official Gazette.)
2) According to the text of the said Regulations, Stuart claimed to be acting under the power granted to him by Section 31 (g) and (h) of the Immigration Act to make regulations for โprescribing the means to be taken for identifying persons suspected of being in Barbados contrary to the (Immigration) Actโ and for โprescribing anything that is by this (Immigration) Act authorized or required to be prescribedโ
(How fingerprinting Barbadian citizens can be a measure for โidentifying persons suspected of being in Barbados contrary to the Immigration Actโ is anybodyโs guess! Furthermore, none of the things that the Immigration Act authorizes or requires the Minister responsible for Immigration to prescribe appertain to fingerprinting Barbadians citizens whenever they attempt to leave or return to Barbados!)
3) The effect of Stuartโs โRegulationsโ as they pertain to citizens of Barbados traveling to and from Barbados is as follows:-
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, scan of the retina of the eye etc.) through the use of a biometric system.
b) The Chief Immigration Officer shall specify the type of biometric data that a person shall provide. (Note: The Chief Immigration Officer has already specified that Citizens of Barbados will be fingerprinted from 1st April 2016)
c) A citizen of Barbados who refuses to provide an immigration Officer with the specified biometric data (fingerprints) may be restrained from leaving the island.
d) A citizen of Barbados who complies with the request to provide the specified biometric data (fingerprints) when he leaves Barbados, but who refuses to comply with the request to provide the specified biometric data when he seeks to return to Barbados, shall be refused re-entry into Barbados.
e) A citizen of Barbados who, having refused to comply with the request to provide the specified biometric data (fingerprint) when he attempts to leave Barbados,ย is still permitted by an Immigration Officer to leave the island, shall not be refused re-entry into Barbados.
(It is clear therefore that these Regulations BREACH the Constitutional right of Barbadian citizens to ENTER Barbados, and severely restrict our right to LEAVE Barbados!)
4) But that is not all there is to note about the Immigration (Biometrics) Regulations 2015! These Regulations, that Stuart formulated or โmadeโ on 17th April 2015 , contain a total of 18 sections. No less than 12 of these 18 sections deal with storing the biometric data of Barbadian citizens (and non-Citizens), and with the conditions for making such data available to foreign and domestic state agencies and / or private agencies!
(This can only lead the citizens of Barbados to have serious doubts and reservations about the purpose of collecting their fingerprints whenever they leave and return to their country, and also about whose agenda the Stuart Administration is carrying out.)
5) So far as the procedural irregularities of the Regulations are concerned, it should be noted that the โRegulationsโ that Stuart formulated or โmadeโ on the 17th of April 2015 were โmadeโ under the Immigration Act Chapter 190 of the laws of Barbados, and that Section 31 (3) of the said Immigration Act stipulates that all regulations made by the Minister responsible for Immigration โshall be subject to negative resolution.โ
The legal procedure for enacting โregulationsโ that are โsubject to negative resolutionโ is outlined in Section 41 of the Interpretation Act Chapter 1 of the Laws of Barbados as follows:-
โ(2) โฆthe expression โstatutory periodโโฆ shall mean a period of forty daysโฆโ
โ(7) The expression โsubject to negative resolutionโ when used in relation to any statutory instruments (such as regulations made under a Statute or Act of Parliament) shall mean that such instruments shall, as soon as may be after they are made, be laid before each House (of Parliament), and if either House, within the statutory period (of 40 days) 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 โฆโ
And Section 16 (1) โ โEvery enactment (such as Regulations made under an Act of Parliament) 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,โ
Thus, having “made” the Regulations on 17th April 2015, Mr Stuart was — BYย LAW — 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 forty (40) days to consider whether they wanted to bring and pass a Resolution to annul the said Regulations ! Mr Stuart was obligated to go through this procedure BEFORE he could publish the Regulations in the Official Gazette as the law of the land!
What Mr Stuart, in fact, did was to publish the Regulations in the Official Gazette of the 23rd of April 2015— a mere six (6) days after he “made” the Regulations! He thus breached the law by failing to lay the Regulations in Parliament and giving Parliament 40 days to consider whether to annul them! Indeed, he was only entitled to publish them in the Gazette as the law of the land IF they had been before Parliament for 40 days ANDย Parliament had not passed a resolution annulling them!
Mr Stuart did not, in fact, “lay” the Regulations until the 15th of June 2015— some 53 days after he had already wrongfully published them 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 !
On a procedural basis alone, therefore, the Immigration (Biometrics) Regulations 2015 are null and void and of no legal effect !
It should also be noted that the Regulations were laid so quietly and unobtrusively in Parliament on the 15th of June 2015 that not one of the several Opposition Parliamentarians that I have spoken to about this matter were aware that the Regulations had been laid in Parliament!
This entire matter is a total disgrace, and confirms that standards of governance and respect for the rights of the citizens of Barbados have plummeted significantly under the current DLP Administration.
In light of the fore-going, I now hereby call upon Prime Minister Freundel Stuart to — within the next seven (7) days — publicly affirm that the so-called Immigration (Biometrics) Regulations 2015 are a nullity and are of no legal effect !
Failure to do so will result in the instituting ofย legal proceeding in the Supreme Court against the Government of Barbados in respect of this matter.
(A copy of the first page of the Gazette and of a number of the relevant sections of the Regulations is attached hereto โ Click HERE)
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