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MITCHELL ANSWERS FRED SMITH CONTINUED…

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cialis generic cialis times;”>Mr. Speaker:

There are reports of various medical complaints most of which are related to normal prison conditions where men are at close quarters in confined spaces over long periods of time  But the prison reports ends by saying:

There are no records of Mr. Sewell making any reports of abuse by inmates or abuse of powers by any staff member. 

Here is what the Judge had to say in ordering Mr. Sewell’s release in a  Judgment written on19th November.  We have complied with the Judgment and a follow up is being done as I speak to be sure that Mr. Sewell leaves The Bahamas : 

The operative points I wish to make here Mr. Speaker is that the First there was no finding by the Judge in the judgment that Mr. Sewell had been falsely imprisoned. 

At paragraph 6 of his judgment he writes; the committal order is at the heart of the applicant’s case. 

This statement is important because that is the linchpin on which the case was decided, nothing else.

The Judge then examined a document which was supposed to have been a committal order and decided that the order did not exist in law and therefore was null and void and not the proper authority on which to hold the detainee

The judge said this at paragraph 14: 

 

And then later the following: 

 

Mr. Speaker, the operative point I wish to make here and why I took so long to respond fully to the misinformation spread by Fred Smith Q C is that I wanted to read and have examined the judgment for myself and be advised.

The matter of what to do going forward whether by appeal or otherwise is for the Attorney General but it seems to me that these observations obtain:

Nowhere does the judge say that the charges against Mr. Sewell which saw him spend time in jail over a period of eight years that the charges were “ trumped up” as Mr. Smith alleges.  That is purely an expression from Mr. Smith which in his deliberately misleading way is then parroted around the world as emblematic of what happens in the Bahamas. 

As a matter of fact, the only period of detention at issue where was the one year or so that the individual spent in the Immigration Detention Centre where he was detained because he had no legal status in The Bahamas, not nine years contrary to what has been wrongly stated by his counsel. 

Secondly, there I am advised that there is no record of the detainee complaining of abuse in the prison at any time during his detention. None from the prison and none in the Detention Centre.  This goes to the credit of the assertions by the detainee now being made after the fact. 

Thirdly, the decision in the Sewell case it appears was made purely on the document before the Judge which the Crown had already conceded was defective. 

Everything else said in the case I am advised was not strictly necessary to the decision before the Judge and therefore is what lawyers would call obiter dictum and not part of the ratio descedendi. Indeed another Q C has similarly opined to the press of The Bahamas.

If this is correct, then what is said on immigration law and its interpretation is not binding universally in The Bahamas. In any event, it would apply only to the facts of this case.  Even  the Judge himself says  it was not necessary to dispose of the case.

Mr. Smith has trumpeted this decision as groundbreaking and revolutionary in Bahamian law.  I do not agree.  The law remains the same as it has always been.

The Immigration Department is responsible for the decisions on who is lawfully in The Bahamas and who is not.  Those decision are sometimes reviewable but in administrative law the principle is well known that the review body does not substitute its decisions for the adjudicating authority unless it is manifestly unreasonable.

The leading case in Bahamian law Ryan and the Attorney General is the authority for that proposition. 

This gross exaggeration on the part of Mr. Smith and his partisans is but one of number of examples of irresponsible  and rash claims  being made. 

You will recall his comparing the work of the Immigration Department of Auschwitz in The Bahamas.  Auschwitz was a   concentration camp used in the Second World War by the Nazis to kill Jews.  There is no evidence of any such similar activity in The Bahamas. 

In the press release the Q C issued with regard to the Sewell case, he talked about a Guantanamo in The Bahamas, no doubt seeking to change the first irresponsible rhetoric, knowing how stupid  and irresponsible it was,  to say something so repugnant.  But with respect there is no evidence of any such thing in The Bahamas. Indeed his case shows that there is no secret lock up.  His client was at all times available and the case reviewable. 

You will also recall this is the same Q C who encouraged illegal immigrants in the country to swamp the courts of The Bahamas with legal actions in an effort to bankrupt the government.  It would seem to me that courts should take judicial notice of this and seek to find out whether the plethora of claims now made by that Q C are not motivated by money and greed on his part as opposed to the genuine  concern for people.  

I insist that what happened in the Sewell case was an administrative error.  I have asked that this not happen again.  Once the error was discovered, the case could easily have been disposed of at the stage of the lawyer’s conference  and Mr. Sewell sent home.  Instead it was allowed to go on and of course court costs were awarded which will go to Mr. Smith. All of it unnecessary.  But it appears that this lawyer does not have a moral conscience that would point him in that direction. 

I spoke immediately after the decision with the Foreign Minister of Jamaica to undertake a thorough investigation of the matters and revert to him with our findings. 

I give the public my assurance that under my superintendence any issue of this nature is easily correctible by one phone call from the legal counsel, from the Consular representative, from a relative, from a concerned citizen. Easily correctible. 

I am also developing between the Ministry of Foreign Affairs and the Immigration Department a Public Affairs Unit to deal with the plethora of Human Rights issues which arise from time to time, to better manage information and the actions of the Department and Ministry. 

There are other statements that have come  arising out of legal cases from this same Q C, one of which has led us to an appeal on an interlocutory order for disclosure where in connection with an immigration matter, the Courts at first instance ordered the release of all minutes and memorandum connected with the immigration policy of the government with regard to non-nationals in this country that was implemented on 1st November, 

The policy is working well.  Most people have complied.  Mr. Speaker one anecdotal example, I spoke to a teacher in one of our public primary schools who told me that in her class she has 26 students and only 4 are Bahamian. Many of them do not know who their parents are.  

How can this continue unchallenged that people live and grow in this country with no documentation about who they are and their identity? 

The policy of 1st November is declarative of the law of The Bahamas and it should be followed.  There is nothing more to say  on the matter.

However, there has been some criticism because of the decision to appeal.  Such a decision cannot be allowed to stand  without going to the Privy Council, the policy court to determine whether the  internal ruminations of Cabinet ministers and the confidential advice they receive from  public servants can ordinarily be subject to disclosure, particularly in a case where the documents may have no relevance to  the case at hand but  may be merely a fishing expedition. 

I have an obligation to my successors to ensure that the law is clear on that matter. 

In a recent statement by the same Q C, there was a criticism in response to my concern about the fact that the courts do not appear to have taken notice of the policy change with regard to the penalties on immigration matters.  The penalties have been increased across the board to a maximum of five years or 10,000 dollars fine for immigration offences,  yet in some cases people have been given 150 dollar fines and allowed to go. That criticism of mine was converted by the Q C who claimed that this was an attempt to control the Judiciary.  That is foolish on the face of it.  Parliament has passed a law.  No one tells the Judiciary what to do but a mere observation is made that despite the change in penalties there appears to be no change in sentencing policy is simply that of an observation and truism. The legislature and the Government have the right to give its views and this false sanctimoniousness about separation of powers should not  be used to deny the point, particularly given who is making the criticism. 

Finally Mr. Speaker, there was a case of someone named Jean Mary Justiillien.  This man was arrested during an interdiction in Eleuthera following upon an illegal landing.  This is a vexing problem for the people of Eleuthera and we have been fighting to contain it.   I am advised that he was released on the charge of illegal landing.

Here is the report on that matter from the Department of Immigration:

The above named Haitian national was arraigned before Magistrate Andrew Forbes, on 23rd June 2015,

Charged with The following Offence, “Illegal Landing “contrary to Section 19(1) & (2) of the Immigration Act, Chapter 191,

Statute Laws of The Bahamas, revised edition 2000. He pleaded not Guilty to the offence. He was subsequently, remanded, to Bahamas Department of Corrections

 and the matter was adjourned to 24th September 2015.

The matter was substantively heard on 1st December 2015. At the end of the trial, the Magistrate ruled that insufficient evidence was proffered

by the Prosecution. As a result the defendant was discharged, and acquitted by the court. However, the Magistrate ordered that the defendant

be surrendered to the Immigration Department for further assessment, and possible Deportation. 

The words: “ for further assessment, and possible deportation” are from the magistrate’s order exactly as given. 

The subject was not born in The Bahamas, has no claim to Bahamian citizenship, had no legal status in The Bahamas and so has been returned to his home country. 

There is nothing more to say on the matter because I am advised that yet another action has been launched in the courts over this. 

We are also waiting the result of another matter in Freeport from the same attorney  where the right of immigration  to challenge the status of a tourist in the country is being questioned.  We await that written ruling. By order of the court, the subject is being given extensions 7 days at a time until the ruling is rendered. 

I say again the attorney in these matters advised the illegal immigration population in The Bahamas to flood the courts with legal actions to bankrupt the government.  That is the primary ambit appears then of all of these matters. 

Each day there is some press release spreading alarm and crying wolf, emanating from the same one spokesman for the Grand Bahama Human Rights Association. Each feed his practice with a case in law and the hope that costs will be awarded in his favour. That is the clear pattern. 

Remember the alarm about the clearing of Gamble Heights.  All lawful steps were taken by the government and the action as completely successful. False alarm again. False information again. 

His two favourite words: unlawful, unconstitutional and so far none has panned out. 

The Bahamas government welcomes the review of any of its policies in a free, open and democratic society but we ask for the facts, not exaggerated and often false commentary. 

I say again this disinformation is giving aid and comfort to a sophisticated criminal enterprise to breach the borders of this country and no Government or immigration minister can allow it to go unchallenged and I shall continue to fight for The Bahamas and resist this attempt to breach our borders, to sap the will of the immigration officers and intimidate us all to have our country awash with illegal migrants. 

Thank you Mr. Speaker. 

End