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The travel ban is still discriminatory

  • Published at 06:34 pm October 2nd, 2017
  • Last updated at 07:39 am October 3rd, 2017
The travel ban is still discriminatory

The Trump administration recently revised the much criticised travel ban on seven Muslim countries by dropping one country, Sudan, from the list, and adding three others: North Korea, Venezuela, and Chad. The blanket ban on Iraqis was also removed.

The revision was, in any case, due since the original ban, which was touted as temporary (for 90 days pending State department review of a more permanent measure), was supposed to expire in October.

What was striking in this updated version was the addition of two non-Muslim countries, North Korea and Venezuela.

Readers will recall that the genesis of the so called Muslim travel ban was from a campaign speech of then candidate Donald Trump calling for a total ban on travels to the US by Muslims irrespective of country or origin.

This rhetoric was heard at the rallies of his supporters after the Paris terror attack last year, and then reinforced with greater vigour after a terror incident in Orlando, Florida the same year.

At one stage he even suggested bans or restrictions on travel from Muslims who have relocated and settled in US. However, after much criticism from his own party, Trump would later try to qualify his proposed ban from all Muslims to Muslims from some countries, particularly from the war torn countries in the Middle East.

There was no doubt that once president, Trump would impose restrictions on travel by Muslims to the US in one form or another. However, it was never thought that this would be one of his first priorities after he took office before even building the much touted Mexico border wall or repealing Obamacare.

But he chose to pass his famous executive order on travel, as this was the lowest hanging fruit in the tree.

Unfortunately for the Trump administration, the ruse that the ban sought only to screen out possible terrorists and not discriminate against people because of their faith was successfully challenged by several states, and implementation of the order was halted.

The federal government’s subsequent appeal partially helped implementation of the ban, but still the administration had to find a way out to make the order more implementable. Hence the revision and the new travel ban.

The updated ban

The treatment of all eight countries in the new travel ban is not uniform, however. For some countries, all kinds of visits, immigrant and non-immigrant are completely banned. For some others, the ban applies to immigration visas only, with exceptions for students and tourists. And for the rest, selective restrictions.

A major objective of the revised ban is to deflect charges of discrimination, since the earlier ban targeted Muslim countries only.

The saving grace in all of this is the US constitution and the fundamental principles that are included in it

Critics, however, have seen through this ploy and are quick to point it out.

To start with, North Korea does not have many would-be immigrants or hordes of tourists thronging at the doors for entry. In fact, statistics show that there were less than 200 visitors last year in the US from that country.

The ban on Venezuela is more ridiculous as it applies only to some government officials and their immediate relatives.

Critics have pointed out that the addition of these two countries does nothing to change the discriminatory nature of the ban on the Muslim countries.

The order has not been challenged in court yet, but the American Civil Liberties Union (ACLU), a major voice for upholding human rights violation, is preparing to fight this out in the courts.

What’s next?

It is too early to tell how the courts will react to this re-engineered travel ban. Media and public reaction have been mild compared to the first order. And there are many reasons for this.

For one, the political climate is currently heavy with the new administration’s struggle with various policy issues. The most recent attempt at the repeal of Obamacare failed because of inadequate senate support. The media is closely watching the next attempt at policy change in the form of major changes in taxes.

Added to this are internal troubles within Trump’s cabinet, surrounding the resignation of his Health and Human Services Secretary on charges of using public funds for personal use.

The media is also closely watching the FBI’s investigation into Russian involvement in the presidential elections and the reported liaison between Trump campaign officials (including his son-in-law) with Russian citizens and officials.

It is possible that the lower courts may decide that the new ban is not compatible with the constitution and is discriminatory against a particular people. But it is also possible that the court at the highest level with its new conservative bias may decide otherwise.

The fact, however, is that with a president who has an election commitment to severely restrict immigration to the country, prevent people  of “questionable” origin from entering, and has a base that supports him, a ban in any form can occur.

Be it from an executive order or legislation.

The saving grace in all of this is the US constitution and the fundamental principles that are included in it. Among these are the right to due process, right to freedom of religion, and right to equal treatment.

There may be attempts of executive orders or legislation to introduce changes dear to one individual or a group of individuals. But these changes cannot be wrought unless they are consistent with the constitution. Let us see how the new changes conform to the constitution.

Ziauddin Choudhury has worked in the higher civil service of Bangladesh and for the World Bank in the US.