A prominent Queen’s Counsel has rejected out of hand Thursday’s ruling by the Supreme Court in the fingerprinting case brought by attorney-at-law and social activist David Comissiong against the Freundel Stuart administration.
Arguing that the legal judgment was not only premature, but an absolute nonsense and stressing that the Immigration (Biometrics) Regulations 2015 were still at the “idea” stage and was yet to become law, Hal Gollop, QC, also did not rule out the possibility of Government pressing ahead with its plan to introduce fingerprinting at all ports of entry, and for all persons, with the exception of children under the age of 16 and persons holding diplomatic passports.
Asked whether he felt the measure had suffered a premature death, Gollop, who is close to the Democratic Labour Party administration, warned that there was nothing stopping Government from taking forward the fingerprinting imitative.
“That is something for the minister responsible for security and his Cabinet after taking all things into consideration,” he told Barbados TODAY while echoing recent sentiments expressed by the Prime Minister and other top officials of his administration that “one cannot be oblivious to the need in a modern society, a modern international climate, to have measures in place that will protect the security of the citizens and the State.”
He stressed that terrorism currently abounds, amid reports that some of the equipment needed for the fingerprinting plan to be implemented had already been sourced by Government.
Nonetheless, Gollop stressed that the Immigration (Biometrics) Regulations 2015 was simply “an idea” at this stage.
“It is not a law, so you cannot act under it. Consequently, you cannot be sued under it,” the attorney told Barbados TODAY, pointing out that the measure 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.
In what has been viewed as a further setback to Government’s fingerprinting plan, Madam Justice Pamela Beckles on Thursday ruled that the move to have the Immigration (Biometrics) Regulations 2015 introduced was not only unconstitutional, but “null and void”, with Comissiong telling waiting reporters at the steps of the Supreme Court that he felt he had been “spectacularly vindicated.
“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) Regulations 2015 were 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,” a beaming Comissiong said in reporting on the court’s decision.
However, Gollop was adamant today that there was no “legal” win to speak of.
Instead, he charged that the court had acted prematurely on the matter.
Insisting that the fingerprinting proposal was not yet law, Gollop pointed out “it cannot be used to fingerprint anybody.
“So by extension, you cannot get a constitutional action against it, because it is not a law. It cannot be used to breach rights, so you cannot get an action against it. It is like getting something against nothing,” the Queen’s Counsel maintained.
He further argued that the consent order “must” be set aside, even as he sought to lay blame squarely at the feet of the Solicitor General’s office for failing to enter a defence in the matter.
“They should have applied to strike it out because it is premature,” he told Barbados TODAY.
“It was an action being brought on nothing, but having not entered [a defence], to go and give a consent order to something that can’t be done legally, is really doubly wrong in my view.”
However, Gollop acknowledged that Comissiong may have made some “political” headway in terms of advancing his argument that Barbadian nationals should not be fingerprinted upon entering or leaving their place of birth.
“That is a political issue, whether Government thinks it efficacious to enact such a measure or not, that is a political matter. That is a decision of the political directorate that is open to challenge . . . but until it becomes a law, what we are doing is debating the pros and cons of Government instituting such a matter,” Gollop insisted.