South Africa November 2006 |
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| Bill of rights seems to be losing ground: comment, (Business Day, 2006-11-13):-Legal commentators in the A-list destination countries have observed that immigration law is frequently the litmus test of a nation’s commitment to human rights. And given that all too often the foreign nationals as a community do not have meaningful political clout, immigrant rights are often the first target for the clawback by the state of executive discretion, whatever the given rationale. In what must have been designed to prevent a reversal of fortunes for human rights, section 7(2) of the bill of rights directs that the state must “respect, protect, promote and fulfil the rights in the bill of rights”. This did not prevent the home affairs department and minister from putting forward a remarkable argument in a recent high court application. The high court had made it clear in the course of argument that the department’s continued detention of a person was unlawful. The home affairs department nevertheless argued that the high court should save the state some resources which it could then channel to more meaningful projects because it fully intended to re-detain the person as soon as he was released and, it contended, the court should not release the person involved. In that instance the court was not prepared to be swayed by the argument of “administrative expedience”. At the end of the proceedings, and not for the first time, the attorney involved was reportedly harangued by a department official for acting for foreign nationals. In another recent high court application, the department argued that the court should not release a person it intended to deport where the individual’s personal circumstances were complicated, because to do so would just complicate the task of the department’s immigration officers in determining who was to be deported and who was not. It therefore argued it should be allowed to apply a uniform policy. There is long-standing precedent in SA that such a practice would be unlawful. In the same matter the department had also applied to a magistrate to confirm its decision to detain the intended deportee. It had not obtained input from the deportee before applying to the magistrate for the warrant nor notified the detainee’s attorney. The magistrate had not seen this as problematic. The high court held that the application to release the deportee was “without merit”. In another high court application for the release of an intended deportee, the court was unimpressed with the argument presented by the detainee’s counsel that home affairs’ own paperwork showed they had ordered the person’s deportation before they had declared the person illegal. The court felt it should be the other way round. The department had also gone on to declare the person to be undesirable — with the result that the person could not be issued with a temporary residence permit. Consequently, it had argued, the person could not be released from detention. The application for the detainee’s release was dismissed. Section 7(2) of the bill of rights appears increasingly to be a dead letter, in practice. There is a danger that, as a nation, we are increasingly surrendering ground and our political legitimacy to xenophobia with job losses and economic insecurity being blamed on the “barbarian hordes” among us. At the same time there is a fear that, for whatever reason, we might see the emergence of a parallel and second-class rights jurisprudence for “unpopular causes”. One only has to read the department’s heads of argument in previous cases to see that the cases where it has sought to limit the application of the bill of rights, are not isolated incidents. SA’s history, our political legacy and the constitution demand, however, that current immigration policy (or the lack of a coherent policy currently) be urgently reviewed against the background of a South African economy as it functions within the 21st-century and global economy. Simultaneously, and irrespective of whether the motivation is political, economic, moral or religious, a strong stand needs to be taken by Parliament and the executive on the gradual erosion of immigrant rights, which all too often (whether rightly or wrongly) appears to be spearheaded by the home affairs department, intentionally or otherwise, if only because this development represents the thin end of the wedge. Ultimately, treating our expatriate community badly will simply be bad for business, especially when we live in a world where capital and jobs can vanish overnight to a friendlier or more competitive environment. | |
South African Migration Project (SAMP) - Queen's University - http://www.queensu.ca/samp |