When the matter came up for hearing in the No 8 Supreme Court today, Madam Justice Pamela Beckles ruled that the Immigration (Biometric) Regulations 2015 were unconstitutional.
The case was heard in chambers after Government failed to file a defence within the required 28 days.
In reporting on the outcome, Comissiong, an attorney-at-law who had filed the case back in March, said he was not surprised that the move was deemed both “null and void”.
“Just as we anticipated, this matter was not contested. It really couldn’t have been contested because the facts were so clear. So Justice Pamela Beckles has granted the order and that order basically says that the Immigration (Biometrics) Regulation 2015 are null and void and are unconstitutional and an order of certiorari has been granted to quash it. So, as of now those regulations no longer exist,” Comissiong told reporters.
The measure, which only exempted children under the age of 16 and persons holding diplomatic passports, was originally slated to go into effect on April 1 this year. However, following much public outcry, Acting Chief Immigration Officer Wayne Marshall announced on March 18 that it was being deferred.
Attorneys-at-law for Comissiong Edmund Hinkson and Lalu Hanuman challenged the measure on the grounds that an immigration officer had no right and power to prohibit or restrain a Barbadian citizen from leaving or entering the country if that person refused to provide the officer with biometric data, in this case, fingerprints.
The claimant also charged that the measure breached the rights of a citizen under Section 22 of the Barbados Constitution as well as the Immigration Act Chapter 190, and infringed on the statutory and lawful rights of a citizen or permanent resident.
“We are happy that good sense has prevailed; that this matter has not been unduly and unreasonably prolonged and we have brought a resolution to it,” Comissiong said.
The defendants listed in the matter were Prime Minister Freundel Stuart as Minister responsible for Immigration, Attorney General Adriel Brathwaite and Wayne Marshall, the chief immigration officer. They were represented by Jared Richards from the Solicitor General’s office.
“What has happened today is a very positive thing because it is sending a message to our citizens. It is saying, ‘this is our country, it belongs to us, these are our rights as citizens of Barbados, we have to value them and we have to be prepared to defend them’.
“We have to exercise the initiative, exercise a sense of personal responsibility for our country and that is what I have tried to do with this case and I think that effort has been spectacularly vindicated,” Comissiong explained.
Hinkson, his legal counsel, agreed. Speaking in his capacity as the Barbados Labour Party Member of Parliament for St James North, he explained that Comissiong had done the public a tremendous service.
“He has shown that no Government is bigger than the law and the Constitution of Barbados; that no Government can do as they feel like; and he has shown Barbadians that [they] don’t have to be scared or terrified or any politician, of any Prime Minister, of any Attorney General, of any Cabinet minister. They are human begins like you and if they are wrong there is the court which will tell them that they are wrong.”
Hinkson questioned the Attorney General’s judgement in sanctioning the move.
Therefore, he said Brathwaite must accept the brunt of the blame.
“Truly one needs to question what kind of Attorney General would really certify that these are not in breach of the Constitution of Barbados. You may wish to excuse the Prime Minister, the Minister of Immigration even though he is a lawyer of 32 years standing . . . or he may wish to excuse himself by saying ‘you must not advise yourself’. But the Attorney General is the one who has to bear the blame with this.
“It has been a serious attempted breach of the Constitution of Barbados and human rights of citizens of Barbados and we are thankful that we have reached here today. We commend the Solicitor General’s chambers for not putting up a fight and for recognizing that their clients, the Minister of Immigration, the Attorney General and the Chief Immigration Officer were wrong,” Hinkson added.
The attorney-at-law also revealed that the judge had awarded costs for two counsels, but they have decided not to keep the funds.
“We have determined that those costs . . . would got to a charitable organization. We don’t want it, we are not going to keep it . . . it will be essentially taxpayers’ money and we have agreed to donate whatever legal cost we will get to charity.”
When contacted this afternoon, the Attorney General said he had been in Parliament all day and would not be able to comment on the court’s ruling before tomorrow.