The exchange between attorneys-at-law Hal Gollop, QC, and David Comissiong over last week’s ruling in the fingerprinting matter makes for fascinating reading.
Having secured a ruling in his favour in his legal challenge to the Immigration (Biometrics) Regulations 2015 under which Government intended to fingerprint everyone entering and leaving the country, including Barbadians, Mr Comissiong boasted that he had been “spectacularly vindicated”.
The Freundel Stuart administration had failed to file a defence and Justice Pamela Beckles had ruled that the regulations were 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) 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 at the time in reporting on the court’s decision.
However, Mr Gollop, who is close to Mr Stuart’s ruling Democratic Labour Party, described the ruling as an absolute nonsense, arguing that the regulations were simply and idea that had not yet been implemented.
“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.
Mr Comissiong’s retort that Mr Gollop was speaking from a position of ignorance and that not only was the correct procedure not followed in publishing the regulations in the Official Gazette, but the regulations constituted a breach of the statutory and constitutional rights of Barbadians, was instructive.
We are no legal experts so we will not attempt to argue the merits or demerits of either case. However, the court has ruled and the next move is up to Mr Stuart, who in mid-May left the possibility of reintroducing the measure hanging deliciously as he spoke on the matter.
In response to the legal challenge that had been brought by Mr Comissiong, Mr Stuart said at the time that whatever was found to be wrong with the proposed measure would be corrected.
Minister of Industry and Commerce Donville Inniss was even more emphatic, insisting during debate on the Immigration (Amendment) Bill 2016, in mid-May that the move was still on the cards.
“Ensuring that those who come into our space, including citizens of Barbados, are fingerprinted is an act that will be done in the best interest of this country, and I think we must all get on board,” Inniss said at the time.
It wasn’t surprising, therefore, when Mr Gollop warned last week that there was nothing stopping Government from taking forward the fingerprinting initative, even as he echoed the Prime Minister’s sentiments 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”.
How the administration intends to correct the measure is not clear. However, what is clear is that Mr Stuart and his Government face a major problem in light of the court’s ruling.
It is not far-fetched to imagine that the administration really does not want to fingerprint Barbadians, but is worried that if it exempts citizens of this country, it might be forced to do the same for Caribbean Community (CARICOM) nationals who would demand equal treatment under the Revised Treaty of Chaguaramas. This would automatically eliminate a large swathe of those the administration would wish to target.
If, as the various Government advocates contend, security is a concern, the administration ought to look at the very United States the protagonists make reference to when trying to justify the move.
Contrary to the many claims, the US does not fingerprint its citizens upon entry, unless they have secured Global Entry, a programme that allows expedited clearance for pre-approved,
low-risk travellers upon arrival in the United States. In this case, the traveller proceeds to Global Entry kiosks, present their machine-readable passports or US permanent resident cards, place their fingerprints on the scanner verification and complete a customs declaration. The travellers then proceed directly to luggage claim or the exit. There is no fingerprinting of anyone departing the US.
In fact, with the exception of the US, none of the major international countries with which we do business on a regular basis even fingerprints visitors on entry as a matter of course. Not Britain, not Canada, not France, not Germany. None. (Singapore had announced earlier this year that it planned to introduce fingerprinting of visitors).
The administration should talk to these countries to find out how they maintain security under the circumstances.
Mr Comissiong might seem to some to be an impossibly bumptious and opinionated nuisance, but in this case he has a point. And any attempt to impose fingerprinting on Barbadians feels nihilistically futile.
We have not heard from Government since last week’s ruling, therefore, we have no idea how it plans to proceed. However, if Mr Stuart and his backers believe this is the way to keep our nation secure, they should think again.
While we too are concerned about security and are of the firm view that criminals should not be allowed to come and go as they please, based on the public outcry that preceded the legal challenge, coupled with the ruling, the administration should seriously consider abandoning the idea of fingerprinting Barbadians.