Comeau: PRC Holders’ Right To Citizenship

August 13, 2014

[Opinion column written by Kevin Comeau]

Recently, in an attempt to clarify the PLP’s position, MP Walton Brown publicly stated the PLP’s rationale behind their opposition to the right of PRC holders to obtain Bermuda status, and then presented a two-step solution to resolve the problem.

By examining the PLP’s rationale and proposed solution from a legal perspective, the people of Bermuda can obtain a better understanding of what happened, why it happened, and what [if anything] can be done about it.

Let’s start with MP Walton Brown’s stated rationale, as reported on July 29:

“We [the PLP] oppose the granting of status based on a judgment by the Chief Justice, since our view is that policy changes should be the express will of the people through their elected representatives and not a court decision.”

From a legal perspective, this statement is misleading. It suggests that the Chief Justice created the law that enabled the granting of status to PRC holders. But that’s false.

It was the duly elected PLP Government that created the law that allows PRC holders to apply for status.

More specifically, in 2002 the PLP Government amended the Bermuda Immigration Act to create a class of Permanent Residents in Bermuda, but when drafting the legislation the PLP negligently failed to consider the provisions of the Bermuda Constitution [e.g., Section 11[5]] that give certain rights and protections to persons who “belong” to Bermuda, which would include PRC holders who become British Overseas Territories citizens [“BOT Citizens”].

Further, the PLP Government also negligently failed to consider how their new amendments to the Immigration Act would work within the operative sections of that Act [such as Section 20B[2] which deals with the right of BOT Citizens to apply for Bermuda status].

In other words, when drafting the amendments to the Immigration Act, the PLP Government failed to consider how their amendment would be affected by two of the most important provisions of the Constitution and the Immigration Act that deal with the right of non-Bermudians to apply for status.

To say that the Chief Justice created this law is complete poppycock. All he did was what the PLP Government failed to do—simply read the applicable sections of the Bermuda Constitution and the Immigration Act to see what rights the PLP amendment gave to PRC Holders.

The Chief Justice came to the same legal conclusion that local lawyers and UK counsel did—the PLP amendment gave PRC holders the right to apply for Bermuda status.

Let’s now look at the PLP’s two-part proposal to fix the problem. Here is the first part, as announced by MP Walton Brown:

“We [the PLP] call for a suspension of the discretionary grant of Bermuda status under Section 20B of the Bermuda Immigration and Protection Act 1956.”

From a legal perspective, this statement is nonsensical because it would do absolutely nothing to stop PRC holders from obtaining Bermuda status. That’s because, as the Chief Justice made clear with his ruling and has been a key tenet of administrative law throughout the modern era, the Minister’s “discretionary” power to grant Bermuda status is far more limited than the PLP is implying.

Specifically, the Minister does not have the power to arbitrarily refuse to grant a person status when that person has met the requirements set out in the Immigration Act. The Minister can only so refuse to grant status in exceptional circumstances, such as where the applicant has been convicted of a serious criminal offense or he is of bad character or conduct.

In other words, if the Minister were to do as the PLP has requested and announce that he has suspended the granting of Bermuda status to all PRC holders, the PRC applicants would simply go to court to once again obtain a ruling to confirm what every lawyer already knows—the Minister does not have the power to refuse to grant a proper application for status.

That brings us to the second part of the PLP’s proposal—to “amend the Act to close the loophole.”

In other words, the PLP are saying, ‘let’s correct the negligently worded legislation we enacted back in 2002.’

Unlike the prior suggestion for a “suspension of the discretionary grant of Bermuda status”, it may be legally possible to end the right of PRC holders to apply for status by amending the Immigration Act. But such amendment will have two large legal hurdles to overcome.

First, section 12 of the Bermuda Constitution may prevent such an amendment.

That section specifically protects BOT Citizen “belongers” from discrimination on the basis of race, place of origin, political opinions or colour, and since the PLP and CURB have publicly stated that PRC Holders are predominantly white and much more likely to vote for the OBA than the PLP, it would be difficult for them to later argue that an amendment stripping PRC holders of the right to status was not illegally discriminatory and a violation of section 12 of the Constitution.

Second, even if the amendment was found to be constitutionally valid [a big if] such amendment would have no effect upon the right to status of any PRC holder who submitted an application for status prior to the enactment of the amendment. In other words, the amendment cannot be retroactive.

And the simple fact is that any eligible PRC holder wishing status has either already submitted his application or will likely do so before the amendment is enacted, which would likely take about three months.

So why didn’t the PLP simply amend the legislation back in August 2012 when the first application for status was made by a PRC Holder?

We don’t know the answer to that question, but since it is highly unlikely that the Minister would refuse to seek legal advice pertaining to such an important issue, it is likely that the Minister either received bad legal advice, or received competent advice but chose to ignore it.

However, it is difficult to believe that the Minister received bad legal advice, particularly when the PRC applicant’s counsel will have directed Government’s legal counsel to the operative sections of the Constitution and the Immigration Act.

And since we know that local counsel, UK counsel and the Chief Justice have all said that the operative sections give PRC holders the right to status, it is much more likely that the PLP Government was given legal advice that reached the same conclusion—that the legislation they enacted was flawed, that they had unintentionally given more than 1,000 PRC holders the right to apply for status, and that the only possible way to prevent the mass exercise of that right would be to quickly and quietly amend the legislation and hope that the court did not strike it down for violation of Section 12 of the Constitution.

The problem, of course, was that in August 2012 an election was looming and the PLP Government was already in jeopardy of losing that election because of years of unanswered allegations of government corruption and incompetence. To publicly admit that they had screwed up the entire PRC matter by giving PRC holders a path to citizenship would have likely made a PLP election defeat a certainty.

In other words, it would appear that the PLP MPs simply put their personal interests of re-election ahead of the interests of those Bermudians they now profess to be protecting.

To make matters worse, it looks like the PLP is now attempting to cover up their past negligence and duplicity by obfuscating the PRC issue with proposed solutions that have no legal foundation, thereby causing unnecessary animosity and anger among blacks and whites and Bermudians and expats, something a country in the throes of a depression could do without.

Note: Although it is common knowledge in legal circles that Courts abhor retroactive legislation, the PLP have argued that the doctrine of “Supremacy of Parliament” would allow retroactive legislation in Bermuda. However, that argument is without merit in this particular case because the Supremacy of Parliament doctrine is not applicable where there is an overriding constitutional protection, such as Section 12 of the Bermuda Constitution which specifically protects BOT Citizen “belongers” from discrimination on the basis of race, place of origin, political opinions or colour. Therefore, any legislation that attempted to retroactively remove their right to citizenship would likely be deemed void and unenforceable.

- Kevin Comeau

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Comments (110)

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  1. James Herald says:

    Neither Walton, nor the PLP are the least bit interested in being rational or fair over this. They are simply stamping their feet in the wake of not being able to get their way. To say they are acting like children, would be an insult to young people everywhere.

    PLP: You lost the election. You are no longer in charge. Get over it!

    Also: We don’t care what you think.

    • Kim Smith says:

      I’m sorry but I don’t agree that we aren’t interested in what the Opposition has to say, just as we are interested in what anyone else has to say.

      • Black Soil says:

        The PLP are on the wrong side of history. They will fail since they don’t know how to reform. The only Party that has any chance of defeating the OBA will be an inclusive Party which rises from the ashes of the PLP.

      • Harlot says:

        “… the PLP negligently failed to consider the provisions of the Bermuda Constitution …”?

        “Further, the PLP Government also negligently failed to consider how their new amendments to the Immigration Act would work within the operative sections of that Act …”

        “… the PLP are saying, ‘let’s correct the negligently worded legislation we enacted back in 2002.’”

        Where is the evidence of negligence? How do you know it was not deliberate at the time (and I am not saying that it was)?

        I think everyone agrees that the governments rely on legal draughtsmen (or women, in Bermuda) when preparing new laws or amendments to existing laws. To accuse the PLP Government of negligence is extraordinary for a constitutional and human rights law lawyer.

        • accountable says:

          Definition of “negligently” from Collins Dictionary:

          adverb – in a way that is neglectful of duties or responsibilities and lacks care and attention

          I think that sums up the PLP when reviewing legislation they approved – regardless of who drafted it.

        • Yup yup says:

          The evidence of negligence is the piece of law they enacted which is in fundamental disagreement with their (previous and current) stated policies. (See definition from ‘accountable’)

          I’m not sure why that’s unclear. It’s the Governments job to understand the full implications of the laws they enact. Failing to do so on this scale is simply gross incompetence. You can’t really argue anything else, can you?

    • 21st Century says:

      “we don’t care what you think” is one of the reasons the PLP lost the last election. This childish “us v “them” on both sides needs to stop, although I fear it won’t.

  2. Crab Mentality says:

    Thanks for giving another perspective on the matter.

    I think PLP is just wanting more unnecessary media exposure.

  3. Well said says:

    This is, by far, the best Opinion piece written on this topic. Thank you for getting back to the facts. All of the marches and hate mongering have been a smoke screen to distract us from the fact that this ‘loophole’ is a result of PLP negligence.

    • micro says:

      Not negligence, the PLP knew what they were doing when they wrote the legislation.

      • Redman says:

        @ micro,

        My sentiments exactly! IMO the PLP expected to be the Govt for the next thirty to fifty years and this way they could allow chosen persons to get status at their whim… as long as they knew ‘who to vote for’.

        All of course in their warped minds to ‘level the voting playing field’ of the previous unfair method of granting status.

  4. aceboy says:

    Sadly this will be ignored and called an opinion, despite the facts contained therein. At the next march the marchers and the organisers will still call it a loophole and claim it to be a move to create competition for Bermudians in the work force and taking away land from Bermudians.

    What I would like to know is how many PRCs were given status before December 2012. Surely that would not be hard to determine.

    • Chris says:

      I don’t believe any PRC holders were given status before Dec 2012 as the law had not been challenged in the courts.

      • Not sure about that ... says:

        The government of the day always had the ability to give out discretionary grants of status. Whether they did or not is another question and the gossip mill is insistent that there were “at least a few”.

  5. flikel says:

    From this article, it appears the government is essentially powerless on this matter. Quite ironic, the government had the power enact this legislation, but now powerless to change it.

    So, we have a government whose hands are tied and seemingly cannot do anything, but sit idly by and grant hundreds, perhaps thousands, of status applications.

    Every poll, survey, focus group and research into voting patterns all tell us with a high degree of certainty how the vast majority of these new citizens will likely vote. Decades of historical voting patterns tell us us how the vast majority of these new citizens will likely vote. Political parties hire consultants and staff whose job is to crunch the numbers and predict how these new citizens will likely vote.

    So, we do know, based of research and historical data, these new citizens will likely vote OBA.

    If these new citizens were likely PLP voters, I wonder if the reaction would be the same.

    Would our now seemingly powerless government still have such a humanitarian heart and allow the PLP voting base to significantly increase, without raising any concerns?

    Would the same people still proclaim that ‘it is the right thing to do’?

    Would the author, of this article, still proclaim the theme of a powerless government whose hands are tied, and can do nothing?

    • Please tell us ... says:

      Please tell us what’s wrong with his argument – it’s a very detailed concise legal opinion summarizing the situation the government is in. The OBA inherited a poorly drafted, poorly thought out law that was put in place by the previous government and they have to live with the consequences.

      Mr. Comeau is simply stating the laws and it would be the same regardless of who the PRC’s in question are.

      As a practical matter, do you actually believe that the PLP hasn’t engaged its own lawyers in an attempt to figure out how to negate the requirement to grant status? The fact that they have’t said a word about why it’s not a legal requirement speaks volumes (i.e., they recognize the legal situation and realize that all they can do is stir up discontent among their followers)

    • bdaboy says:

      Did you read the article? Your PLP government did this, and now you’re upset about it and trying to blame the OBA. Clearly, you don’t understand what your party has done to you. Can you find a 10 year old somewhere to explain it to you in words you may understand?

    • sonso says:

      The real question is, would the same people (YOU) proclaim it is not the right thing to do?

      Get over it, fikel!

    • Derek A. G. Jones says:

      It wouldn’t matter a bit. The PLP lost the last election because a large section of black Bermudians refused to vote. They didn’t vote OBA, they just didn’t vote PLP. They just wanted change in how the country was run. The number of people who didn’t vote is considerably higher than the potential PRC’s. If the PLP want to win the next election they simply have to prove they are the better party with better ideas and stronger skills in handling the economy.

      • LOL (Original TM*) says:

        So many did not vote that should have been a message to the PLP that they need to change but instead they go harder in the same dirrection they have always been headed.

        LOL

    • 32n64w says:

      “Every poll, survey, focus group and research into voting patterns all tell us with a high degree of certainty how the vast majority of these new citizens will likely vote”

      Please direct us to thee poll, survey, focus and research group results.

      • flikel says:

        Sure, as one example, I refer you to the poll conducted by Profiles of Bermuda, published on June 30, 2014…in which voters were asked ‘If an election were held tomorrow, which party would you support?’

        I also refer you to another poll conducted by the Royal Gazette published in December 2013, in which voters were asked which party they support.

        This is just two examples, and there are many others who show consistently there is a racial bias in voting patterns.

        However, living in Bermuda, these polls only prove what people have already known for decades.

      • If those polls exist ... says:

        If those polls exist they’d only provide more support to Mr Comeau’s point about an attempt to roll back the right these people have to status is based on their political beliefs which is in violation of Section 12 of the Constitution.

  6. hmmm says:

    Why aren’t the marchers marching against the PLP ?

    The PLP sure fooled those folks.

  7. Really says:

    It’s a good think this man left Bermuda when he did. As now he’s ineligible for status. Thank God.

    • LiarLiar says:

      As you stated on another thread this morning:

      “You must really not like what he said. For – by estimation – it is factual and yes the truth hurts!

      You don’t correct history by ignoring it.”

      • LOL (Original TM*) says:

        (air horn) for real, exactly what I was thinking. See the PLP bloggers for what they are haters.

        LOL

    • Lois Frederick says:

      I guess the truth must hurt.

    • sonso says:

      Makes too much sense for you inna!

    • Please tell us ... says:

      Please tell us why it’s a good thing? The island lost a very good legal mind with his departure. That’s Bermuda’s loss.

    • JH says:

      If he’s been gone less than 2 years he could be elligible.

    • BlueFamiliar says:

      Soo…the less people on this island who understand the workings of the law and Government the better?

      Weird perspective.

  8. JH says:

    Special note to PLP: It is not a ‘LOO-POYAL”. It is the LAW.

    In addition, if the law was changed, it would only affect foreigners going forward in the future – not any of the PRCs who already qualify.

    But don’t let facts get in your way, you never did before.

    James Herald

  9. Al says:

    Wow, this makes Walton Brown/PLP and the People’s Campaign look very silly indeed especially given how many lawyers there are in the PLP who could have corrected the Party’s stance.

  10. Ian says:

    Yadi yadi yahh… Point blank everyone knows it would be under the OBA’s “watch” a path to citizenship/status (and through that voting rights) for a large number of PRC-holders would happen. NO SURPRISES AT ALL.

    You folks want to have an academic discussion on the matter as if it isnt obvious the OBA endorses this for the sole purpose of bolstering its support base. Advocates of this dishonorable, dishonest, archaic approach to social alchemy on this island are not fooling anyone with their silly little exercises in attempting to rationalize the exploitation of a sleeping provision in legislation with clear intent that furthermore reflects the sentiments of the majority.

    Keep insulting the peoples common sensibilities and see what that does for relations between blacks/whites, Bermudians/foreigners in Bermuda. Quite a bit a fire being played with right now to put it mildly.

    • LiarLiar says:

      Ian, other than your constant threats of violence and civil unrest, can you please respond to the issues noted in the above piece?

      And given that no law has been changed by this Government to permit this from occurring can you please explain how it is “dishonorable, dishonest, archaic approach to social alchemy.”

      From what I can tell the law is being upheld as written by the former Government and thus it cannot be labelled dishonest and such. Law is the law.

      Again, please provide a coherent reponse to the facts presented and please try and avoid threats of violence that you persistently turn to when unable to provide a legitimate response.

      Thank you.

      • LOL (Original TM*) says:

        Don’t hold your breath waiting.

        LOL

      • Ian says:

        Threats of violence and civil unrest?? Great job pulling that one out of your hat… Get a life Liar.

        As for your apparent view that gospel are those legal opinions supporting what is without ANY doubt a controversial path to status, I can assure you most people still have the natural ability to distinguish right & wrong from legal & illegal.

        But again, I insist, continue having fun with your silly attempts to legitimize the wrong-doing (through inaction) of this government.

        • Inaction?? says:

          Ian, while you may think that this is a case of right and wrong differing from legal and illegal, fact of the matter is the government is bound by the law. Not by what you think is right but the law.

          As Mr Comeau so elegantly states they have no choice. None whatsoever. The law is the law and they can’t change it retroactively so anyone that has already applied will have to be given status.

          And they did everything in their power to block this. They turned down the original application, the fought it in court and when the Supreme Court ruled against them they filed an appeal while they sought legal advice regarding the outcome of that appeal. A highly respected Queen’s Council told them that they’d lose and the Privy Council would uphold Kawaley’s ruling. Only then did they stop fighting – after all, the only thing they could accomplish by proceeding with the appeal was to spend a few million dollars of taxpayer money in order to end up in exactly the situation they’re in now.

          • Ian says:

            Everything in their power?? You sound ridiculous… naive at best. You really think the OBA (particularly Fahy with his legal background) had any expectation of the measures they took having any impact on correcting the matter beyond saving them from an (immediate) political suicide for not appealing? While you may be genuinely guillable enough to place faith in your account of things, the average real Bermudian, who understands the dynamics of this island for what they are, does not.

        • LiarLiar says:

          So you got noting in other words.

          Cool. Gone to get a life. Enjoy.

          No wrong doing to defend. Law is the law. Just because your Party celebrated our Constitution being trampled on(re: Uighyurs decision) doesn’t mean that all Parties should not adhere to laws that they do not like.

    • So tell us ... says:

      So tell us what the OBA is supposed to do. They did everything in their power to stop this from happening. The minister refused the applications. Then the government fought it it court. Then they appealed to the privy council. It was only after receiving legal advice from a highly respected Queen’s Counsel that they withdrew the appeal (that advice said that the Privy Council would uphold Kawaley’s ruling). In other words, all that they’d accomplish by continuing with the appeal is to spend a few million dollars more of the taxpayers’ money.

      So now, as Mr. Comeau says, they have no choice in the matter. They have to grant status. It’s not discretionary. It’s simply a matter of law.

      • LOL (Original TM*) says:

        “In other words, all that they’d accomplish by continuing with the appeal is to spend a few million dollars more of the taxpayers’ money.”

        Which then would be complained about by the PLP as “Increasing the Debt”

        LOL

    • jt says:

      Comeau’s piece seems pretty academic to me. Why don’t you address it?

      It’s fair to say both the plp and oba have an interest in thus that relates to votes. That would be an honest view.

      • LOL (Original TM*) says:

        Because he can’t. Notice none of the Bettys, or Famous are here they sent the second wave of PLP bloggers the more cloak and daggar types.

        LOL

    • Heavens says:

      why aren’t you hating on the PLP? THEY are the ones that did this.. not the OBA. you moron.

    • Toodle-oo says:

      Ian , you sound like someone who’s just been stung by a swarm of bees.
      Smarting much ?

      Seeing you love conspiracy theories so much , here’s one for you . Maybe , as has already been suggested , this was very deliberately worded , inserted into and hidden in the immigration act so the past government could tell ‘select people’ on the QT about it.
      The problem is it was eventually discovered by ‘the wrong people’.
      How’s that ?

      Furthermore , seeing you believe that quite a bit of fire is being played with right now maybe you can tell us what you have targeted when the trouble starts . That is , IF you can read between the lines , because the rest of us know full well what people like you and Alvin , just to name two , are always on about.

      • Ian says:

        Please elaborate re conspiracy theories.

        Was the intent of PRC legislation clear, going as far as to remove any expectation of citizenship, and reflective of a sincere effort to legitimize long term residency (which the UBP didnt do)?

        Did the OBA make any effort to work on “bi-partisan” solutions for amending said legislation in according with intent to create a clean slate on which to draft new, intelligent, comprehensive immigration reform?

        Is it not more above board, in the name of “openess” and “transparency” to allow any granting of status only through a clearly defined path as opposed to a “sleeping provision” that in itself leaves out many that probably deserve a path to status?

        I’m not into conspiracy theories and quite frankly, of those who are, the OBA has actually carried out many of those theorists pre-election predictions – scrapped term limits, easier access to property ownership for foreigners, easier access to controlling stakes in Bermuda business for foreigners, easier access to PRC status for executives. The OBA has been nothing but predictable as this isnt the OBA/UBP’s first rodeo.

        So I’ll let you fiddle with hypotheticals regarding intentional sleeping provisions on the part of the last administration.

        • zora says:

          Ian,

          Thank you. The issue is one of power and disempowerment.

          It is dishonorable to sit back and allow yet another rift to form within our community as if there aren’t too many already. Anyone who says we don’t vote along racial lines must be of the “colorblind” variety. There are a lot of young people, myself included who thought our vote for the OBA would be a vote for something different. Something outside of the check boxes or black or white. After this first year I don’t believe that the OBA are any different from the PLP or UBP. All parties can fall under the banner of COWARDICE.

          ONE BERMUDA! Who’s Bermuda will this Bermuda be? If they wanted to unify us this is not the route.

          Comeau,

          I lost a lot of respect for you just now. I was disheartened to hear that you were leaving, you do have so much to offer the world.

          But you left because you can leave and you will as long you can. Apply for status. Give up your current status – your exit plan/plan b. Let your daughter give up hers too and then maybe we could trust that you are more than self serving. Otherwise how are you more than an opportunist jumping from ship to ship to avoid or enjoy.

          There should be comprehensive immigration reform – you know this. Until I see your detailed letter/essay/opinion on why there can be and should be immigration reform I will think of you as I do now…as someone who doesn’t understand why the black community is worried about legislated disempowerment*.

          This is about the right to vote! The right to know your vote means something. I feel my vote means nothing now and will mean even less tomorrow. I don’t want to vote for black or white but it seems as though that is all we ever end up getting to choose. How many others feel this way? How many more will be pushed to the fringe?

          So disappointed.

          *dis·em·pow·er
          verb \ˌdis-im-ˈpau̇(-ə)r\

          : to cause (a person or a group of people) to be less likely than others to succeed : to prevent (a person or group) from having power, authority, or influence

          • Kangoocar says:

            @zoro, nice try you liar!!!! You are just another Alaska hall/plp paid blogger!!! Typical nonsense from you lot!!! I have noticed that you all are giving the name betty a rest?? I will thank you for that!!!

            • Ian says:

              lol… i would love to meet kangoocar! that would be so entertaining!

          • Reform?? says:

            zora, I don’t know why you lost respect for Mr. Comeau for providing a public summary of the law as it stands along with an explanation as to why it cannot be changed.

            But one thing you seem to be missing. Regardless of what sort of immigration reform is enacted the existing PRC’s who have applied under 20B have to be granted status and there is nothing that the government or anyone else can do about it.

            Any reform will only apply to other individuals that may decide to apply – those that came here after the 1989 cutoff date. If anything, comprehensive immigration reform is only going to produce another pool of potential applicants [but it will NOT eliminate the existing ones].

          • Creamy says:

            No one is being ‘disempowered’. In fact what the government is doing is applying the law equally and fairly to everyone so that no-one is disempowered.

            The PLP, on the other hand, wants to suspend and waive the legal and constitutional rights of Bermudians and people of Bermuda. On a whim, they want to illegally take away rights.

  11. JH says:

    Wonder how that guy is doing getting his 11,000 signatures against the PRC thing. He probably got stuck after the first 11 and decided to leave out the three zeros.

  12. jt says:

    Alvin? Walton? Ian? Kunta? Rhonda? Betty?

  13. Joonya says:

    BAM!! Any questions? Um um I doan know.. lets march..

  14. bdaboy says:

    “Point blank everyone knows it would be under the OBA’s “watch” a path to citizenship/status (and through that voting rights) for a large number of PRC-holders would happen.”

    But, it happened under the PLP’s watch…in fact they made it happen….why don’t you understand this?
    Pull your head out of the sand, stop being such a hypocrite.

    • Ian says:

      Nope… it is happening under the OBA’s watch genius. They’re the ones in government. They’re the ones that are claiming to be helpless in the matter despite their proven track record of changing laws to suit their needs (i.e. to legalize cancellation of Waterfront Lease). You can play dumb all you want mate but it wont stop the masses from seeing what is going on here for what it is and reacting accordingly.

      • Did you read the article ... says:

        Ian, this is not the same as the Waterfront Lease – if you actually bothered to read Mr Comeau’s opinion you’ll see that the Constitution gets in the way of changing this law.

        • Ian says:

          Sure mate… The OBA were soooo helpless with the hands tied on this one. Theres just absolutely nothing they could have done. They’re victims of the PLPs incompetence and failed “LEGISLATION”… Woe is the OBA as it relates to the prospective granting of status to tons of folks that are looking to get back door access to the vote in my country while also retaining the right to vote in theirs… yadi yadi yaaah…

          Take notice of the increasing number of folks that are seeing the OBA for what they are and who they represent. Take notice of the increasing number of folks calling BS on the colorful ways the OBA and its supporters attempt to legitimize the party’s wide array of tactics for empowering non Bermudians.

          • Does that mean .... says:

            Does that mean the Constitution doesn’t matter? Or doesn’t it matter simply because you don’t like the outcome?

            The Waterfront Lease was a totally different matter and didn’t raise the Constitutional issues this does.

          • Harry Buttle says:

            Many of “those folks” do NOT have the right to vote in their home countries because they have chosen to be resident in THIS country. Last time I checked besides the US, there aren’t many countries in our pool of PRC residents that still consider a non-resident eligible to vote. Usually paying local taxes and being resident are pre-requisites for voting privilages.

      • bdaboy says:

        Ian, you’re the one who is dumb…I don’t think you’re playing at this point, I’ve read enough of your posts to realise you just don’t have the intelligence to understand what your beloved PLP did to you.

        • Ian says:

          Condescendence (which seems to be in you folks blood) doesnt make you any less of an idiot bdaboy.

          • Ringmaster says:

            Remember the White’s Island lease? The one where someone “forgot” to remove the automatic renewal that took the lease over the 24 years and 365 days limit? Who drafted that?
            Intent has no place in legal interpretation except in some rare contract law cases. Judges have to take the law as written. The DUI legislation was flawed when written and passed in The House as it didn’t state a mandatory term off the road. It was amended, but couldn’t be retroactive.

            No amount of explaining the workings of law will convince people such as yourself. My suggestion is for you to talk with Kim Wilson or Marc Daniels who are lawyers. Do you see them jumping up and down and joining in the call for marches and demonstrations? No because they understand the law as it is written, not what the intent might have been.

            • trulytruly says:

              Marc Daniels marched on Govt House, Kim Wilson was not there. Draw your own conclusions.

              • Believe says:

                The march on govt house was not about the PRC issue rather was (reportedly) about the governor’s decision about the Tuckers town enquiry.

                [I say reportedly without knowing the full content of the letter presented].

          • bdaboy says:

            ….your inability to comprehend the laws your beloved PLP enacted, only reveals your stupidity, ian.

          • Anon says:

            ” you folks”….. Nice. What a hateful sad, human being

  15. Carlton Smith says:

    Now,that Ke in Comeau has come that far pethaps he would see that tetm l8mits prevented the work permot from beimg exploited to create PR’s and eventually overpopulate. As much as we don’t want to deny rights, we realistically can’t accomodate everybody in the world.

    If ANY of you recall, status and residency has always been botched by ANY Bermuda Government. The same set if politicians under the UBP banner had LTR issues, with many fearing mass repatriation. They left it an unsorted mess.

    In 2002 UK Immigration law changed, as did many around yhw world. Bermuda was adjusted accordingly. There were checks and balances put in place to accommodate and address everything in Mr. Comeau’s commentary.

    However information about the xhanges in law and the effects allowed the Government to manipulate that info and made campaign promises, to SOLVE TO LTR PROBLEM as well as stop gap measures to arrest to growth in numbers of LTR’s.

    As you can see from Kevin’s writings, PLP committed huge errors, and OBA committed huge errors, both through grandstanding to create political audience.

    People we really do need to quit this circus called Parliament.

  16. Seament says:

    Politricks…as its now regularly referred to.
    ————–
    Urban dictionary:
    Politricks is the word “politics” altered to convey the empty-campaign promises often experienced after politicians get elected.
    “Read my lips…No new taxes”

    Politricks sums up the vast difference of how politicians seem when they campaign versus when they reign.

    or…

    politrickster
    One who promises one thing and does another. All politicians are politricksters.

    • So tell us ... says:

      So tell us how that statement applies in this case. I don’t see how the government can be accused of promising one thing and doing another when they have no choice in the matter.

  17. JH says:

    This is the biggest PR disaster to date for the PLP. They have failed in their attempt to stop this, and along the way they eliminated the remotest possibility that any of these new citizens will ever vote for them ever. What a shame. If they had embraced this, they would certainly have attracted some new votes. Instead they continue to alienate more people day by day.

    PLP needs to broaden their appeal and start attracting new voters if they ever plan on getting back in power ever again.

    Simply moaning about the past, bringin up race at every corner, and professing the plight of ‘grass roots Bermudians’ is not cutting it any more. It is simply separating them and their few remaning supporters from reality.

    • street wise says:

      That’s all the plp know: race politics. They are incapable of change because of the old haters behind the curtain.

  18. Rhonda says:

    Bermuda is a colony, there is no such thing as as a Bermudian or a Bermuda citizen…..

    • JH says:

      In that case Rhonda, the PLP should have no problem with these PRCs becoming (no such thing as) Bermudian citizens.

  19. Thomas Mahoney says:

    Mr. Comeau, we all know who enacted the said legislation. No need to keep beating a dead horse. Anyone reading this article with an independent mind and a little bit of critical thinking can clearly see that your piece is nothing more than an thinly veiled attempt to bash the PLP with some clever words and semi-pertainant legalities. Yes, the PLP did it. And yes, they should have fixed the problem themselves, but they didn’t. That doesn’t change the fact that the OBA should have amended the legislation themselves, before the house retired for the summer. Instead they do nothing, and by doing nothing, they have upset many Bermudians, who would like to see PRC’s get status by a fair and well laid out process created through immigration policy reform. Your piece is less about PRCs and status than it is about blaming the PLP and defending the OBA’s inaction.

    • Ringmaster says:

      You seem to have not read or understood Kevin’s comment. There is nothing the OBA, nor had the PLP been the administration, the PLP, done to amend this law retroactively. The law stands as it was written and passed in The House. The OBA, PLP, BIU, PC or anyone else cannot change it. Live with it. It can be amended but it will have no effect as those PRC who comply with the requirements will receive status. It does not expand it. If you believe the Walton Brown and Chris Famous lies about 4,000 or 6,000 people then you have been lied to and duped.

    • zora says:

      And let the choir say “Amen!”

      Choir: “AMEN!”

      Exactly, EVERYONE knows the PLP enacted it and EVERYONE knows the that OBA are exploiting it for votes. They can institute immigration policy reform across the board and they should. But will they? HIGHLY unlikely.

      The OBA and the PLP are asking people to once again draw battle lines determined by race and class and now status. Battle lines that the OBA said that they wanted to erase so that ONE BERMUDA could emerge. ONE BERMUDA that must be this “another world” EVERYONE isn’t talking about.

      • So .... says:

        zora, So what is the government supposed to do. As Mr Comeau has so elegantly explained their hands are tied and they cannot amend the law with retroactive effect. Those eligible PRC’s that have applied must be granted status.

        Or do you believe that the government should ignore the law and find themselves subject to lawsuits by every PRC that has applied? Lawsuits that they will lose by the way.

  20. Cow Polly says:

    One positive to come from all of this is that in the next election the PLP will not be able to rely on just the black, blue collar vote so they’ll actually have to come up with a platform which is inclusive to all Bermudians and actually address the issues of the day. I look forward to that day when all Bermudians will have a real choice to make on which political party they vote into power

  21. Human Rights for all says:

    Were the PLP incompetent, or did they leave the “loophole” on purpose?
    I wish someone from the PLP would answer this. Either way, they don’t look too good!

    • hmmm says:

      Did they grant any PRCs full Bermudian Status is the question the PLP need to be honest about and answer.

  22. Lewis Padgett says:

    I can’t help but smile through all of this. It was OK for the PLP to change constitutional boundaries thereby garnering more votes for the PLP, and change them again just prior to the 2012 election to gain even more control, but somehow completely ignore this, and want to overlook that and redirect your focus from a situation that they created, using an argument that bears no merit, and blame the OBA for trying gain more white votes. And just where is this “so called” proof all the PRCs will vote OBA? Many PRCs may be Portuguese, who traditionally lump themselves with blacks. Get over it PLP, this is getting really, really old.

    • zora says:

      I would welcome your proof that Portuguese vote for the PLP since they “lump” themselves with Blacks.

      • Toodle-oo says:

        Anyone who thinks that Portuguese ‘lump themselves’ with blacks don’t know them very well.

  23. Seament says:

    @cowpolly….as it stands now, most people couldn’t vote for either party. We’ve learned!

  24. Eyes Wide Open says:

    One of the best and logical and honest analyses on this topic to date. To respond to a much earlier post, not only did the PLP design this legislation either on purpose or based on shoddy draftsmanship, but for the avoidance of doubt that draftsmanship was done by none other than their own politically appointed Attorney Generals office, the one and only superstar of the PLP – Kim Simons.
    This is not a shocking revelation when you consider the PLP couldnt even figure out how to order the right size garbage truck….!

  25. Alvin Williams says:

    Mr. Comeau is a Canadian I doubt whether any one could claim right of citizenship under the circumstance which it is claim under this loop hole in Canada.
    But it is correct to state that the PLP made a mistake in trying to be fair to an element of the population that would never support politically.
    To me it is clear what we must do to get rid of this anti-Bermudian OBA government and that is to politically mobilize our people to throw out this government come the next election.
    Those three thousand who did not come out to vote have much to be regretful over for their careless disregard of their right to vote as much of this government’s anti-Bermudian policies have directly effected them and are sure to effect their children if we do not return the reigns of government to the Bermudian people. That’s why the OBA government had no intention if closing this immigration loop hole; it knows it will not get away with telling any more lies to the Bermudian people and is hoping to gain something politically by taking the side of the foreign population as oppose to the interests of the Bermudian people and as a result we will create a political wave that will reach such a hight that it will sweep this anti-Bermudian government into the dust bin of history and thus for once and for all liberate our country.

    • Elizabeth Trumparani says:

      Mr Williams: One final time. It is not a loophole – it is the law. It is the law your PLP passed.

      They passed it quite deliberately so that they could give status to the people they wanted – but it blew up in their faces.

      And now they’ve alienated these future voters so they will never ever vote PLP. There is a lesson to be learned here – but PLP won’t learn it – they simply aren’t smart enough – and it is easier to blame OBA.

    • Canadian .... says:

      “…I doubt whether any one could claim right of citizenship under the circumstance which it is claim under this loop hole in Canada.”
      =========================

      Alvin, if someone has legally lived in Canada for four years they have a right to apply for citizenship. The qualifications are pretty straight forward (http://www.cic.gc.ca/english/helpcentre/answer.asp?q=355&t=5)

    • Alan Smith says:

      sigh. There is no “loophole”

      Why does no-one on the anti OBA side get this. This is the law, under our constitution it cannot be retroactive removed. All those who put their applications in after the ruling are going to get status even if you did the PLP’s “ammendment”. Otherwise it is a breach of the consitution. Please educate yourself before coing to such extreme views. Listen, read understand and then I will have more respect for your position. At the moment you come to your decision first.

    • Read much? says:

      Looks like you didn’t read the article at all! This is about the law and legislation that the PLP passed.

      Also, anyone can apply for Canadian citizenship, and owners of a Canadian permanent resident card have a higher chance of a successful application. Canada welcomes diversity.

  26. Need Peace says:

    I can recall the Chief Justice commenting that this piece of legislation was ambiguous. It was clearly an oversight that unless challenged (as it was) it would be detected. I also recall the PLP calling for the loophole to be amended and the granting PRC status suspended until Immigration reform has been completed. That sounds like a reasonable request. It doesn’t sound like what you are saying in your article Mr. Comeau. No one is saying suspend granting status to PRC’s as if they are opposed to it! The issue has always been obtaining status through stealth. Amend the legislation and do Immigration reform. We get it that it was an error from the previous administration, but if you’re suggesting that it could’ve been deliberately worded, how then did they benefit from it? You can’t chopped up the words of Mr. Walton Brown to attempt to make a case. Granting status through the back door is wrong! Tell me this, how many residents could Bermuda contain comfortably? Unless this study has been completed, the end result could be disastrous! If this isn’t right thinking then maybe we could wait until you say Oops…..Sorry, I made a mistake while on your way to your alternative abode.

    • Come Correct says:

      What exactly don’t you get about the fact the PRC’s arr already here with jobs and homes? We would not be increasing the population. Also how is this a loophole, backdoor (for being anti-homosexual the plp love that word) or obtaining status by stealth when as far as I know it is clearly stated in the law?

    • Read much? says:

      “In other words, if the Minister were to do as the PLP has requested and announce that he has suspended the granting of Bermuda status to all PRC holders, the PRC applicants would simply go to court to once again obtain a ruling to confirm what every lawyer already knows—the Minister does not have the power to refuse to grant a proper application for status.”

    • Kevin Comeau says:

      @ Need Peace

      Your comment that the Chief Justice said that the piece of legislation was ambiguous is correct. Well drafted legislation is not ambiguous; well drafted legislation is clear. And when drafting important legislation that will affect the lives of both Bermudians and PRC holders, it is simply negligent to fail to make the legislation clear. (In fact, the Chief Justice showed how the legislation could have been written without ambiguity.)

      Your recollection that the “PLP called for the “loophole” to be amended and granting PRC status suspended” is correct. That is exactly what I addressed in the article when I quoted MP Walton Brown, word for word. And that is exactly what I have said is the problem because it would have no legal effect this late in the game.

      The only chance of closing the “loophole” was in August 2012 when the first application for status was submitted to the Department of Immigration. We know the PLP Government knew of the problem at that time because counsel for the applicant pointed out the operative sections of the Immigration Act and Bermuda Constitution to the Government.

      But the PLP Government chose not to amend the legislation at that time, most likely because an election was looming and the public admission that the PLP Government had screwed up the entire PRC issue would have surely cost them the election. (They lost the election anyway, but consider how many more PLP supporters would have not voted if they knew the PLP had screwed up the PRC issue.)

      In other words, the PLP put their own re-election bid ahead of the interests of those Bermudians who feel they will suffer as a result of PRC holders obtaining status.

      It is now too late to amend the legislation because any eligible PRC holder who wants status has likely already applied. Further, once a PRC holder becomes a British Overseas Territory “Belonger” it is likely against the Constitution to enact legislation that takes away his right to apply for status. So the call by the PLP to amend the legislation is a waste of time and therefore nothing more than theatrics.

      Further, the call for the Minister to suspend the granting of status is, legally speaking, also a waste of time because, as the Chief Justice made clear, the Minister does not have the power to suspend the granting of status where a person complies with all parts of the legislation, which is the case under the PLP drafted legislation. Further, if the Minister tries to suspend those rights, the PRC holders can simply go back to court for an order forcing the Minister to grant those rights.

      In other words, I have not (as you falsely claim) “chopped up the words of Mr. Walton Brown to attempt to make a case.” I have quoted him directly and then shown how both his stated rationale for his position and his suggested solutions are all based on flawed legal reasoning that will do absolutely nothing to change the legal right of PRC holders to obtain status.

    • Harry Buttle says:

      You still are talking like the ones asking for status are people living in Outer Mongolia. They are people who are already in Bermuda! Their spouses unless already PRC will have to wait 10 years to get status, most of these PRCs are already in their 50′s (or older) and the only ones who can apply under this law are PRCs who have been here before 1989.

      Even if the “new” PRCs wanted to they couldn’t apply because the law stipulates that they had to be here before 1989!

      Please stop talking about this like there’s some mythical flood of immigrants coming to Bermuda to take all of our jobs and buy up all the land. These people are already here and are unlikely to make sweeping changes to their current lifestyle.

      The way it’s spelled out is that the law stands and no amount of stomping one’s feet, wailing or gnashing of teeth is going to change it. It’s an oversight, both parties put forth flawed legislation (as if that’s NEVER happened before anywhere else in the world).

      How about all those who paid the license fees as spouses of Bermdians and were forced to either license or sell their property? Did any of them get their fees back retroactively when the law changed?

      Sometimes it’s a b*** living in a first world country where the government is actually accountable to the law of the land, more expecially the constitution of the territory. Of course government is also accountable to the people but still cannot be above the law. Loophole / backdoor / legitimate pathway to citizenship – it’s still the law.

    • Not sure what your point is ... says:

      “…how many residents could Bermuda contain comfortably?”

      Need Peace – the fact is, the PRC’ in question are already here so this won’t increase the number of residents on the island.

    • Creamy says:

      So. How many other legal and constitutional rights would the PLP ignore if it were in power?
      Given that it seems to think that legal rights are meaningless.

  27. Need Peace says:

    Another vital point in this equation is the removal of Term Limits. This situation will magnify in the not too distant future for something that the OBA DID!!!!

    • Term limits??? says:

      If you’re really as naive as you appear, term limits were the result of the UK’s position on “colonies that were independent”. Anyone that had been resident for six or more years had to be given citizenship in the new country. No question (and that has nothing to do with PRC’s).

  28. Legal Eagle says:

    I am a senior lawyer-without political affiliation!The vote in my house is based on merit-not race or acrimony-current or historical! That said, I commend both the CJ and Mr Comeau on their excellent legal statements of the current LAW-enacted by Parliament-not them!! The attempt by some to denegrate the LAW it by blaming the CJ or by calling it a ‘loophole’ is ill concieved-as it is the LAW-period!! Further,like all of us,the Minister cannot break or circumvent the current LAW by arbitrary administrative inaction such as ‘suspending’ it’s application! While the LAW can be amended going forward-it is illegal to amend it retroactively! It is the LAW-not a contract or lease! Finally(for me) comments denegrating the CJ or Mr Comeau (or even each other )does not change the FACT that the (current) ‘LAW is the LAW’-whatever your view of it!!

  29. Micael Bronze says:

    Very well stated Legal Eagle, but this long before the social environment became toxic.

    The OBA had every opportunity to state the Government’s position, but did so at a snail’s pace, therefore they are equally to blame.

    Now the Government wants to be transparent? Now, w want to pick up the pace in an academical sanitized manner?

    If this is any indication of how slowly the Government acts or reactions during challenging times, the crisis is within the Goveernment.

    • Edmund Wells says:

      Mr. Bronze-

      OK, now wait- is this another pivot? I just want to make sure I’m following correctly.

      You know, like the Chris Furbert “I’m not giving you an ultimatum which you can take to the bank” pivot?

      Or the one about not demanding reparations for alleged injustices at Tuckers Town pivot?

      It sounds like a, “Oh, we’ve always been in favor of this, but we were just upset with how slowly its gone. Please ignore all our silly talk about red lines in Parliament or establishing a process for PRCs” kind of pivot.

      I think its another pivot.

      It sounds like another pivot.

      EW

  30. Socio-political landscape? says:

    Michael, this has nothing to do with the “socio-political landscape”, that is, unless you believe that the government should disobey the law simply because a certain small but very vocal segment of the populace doesn’t like something.

  31. Gombey Liberation Partier says:

    Wow! Truly amazing and sad that persons have no issue with potentially flawed Legislation which affects everyone, simply because their Party wasn’t the one that wrote or passed it. Pure proof of how party politics has ruined good governance worldwide.