Wednesday, October 9, 2019
By KHRISNA RUSSELL
Deputy Chief Reporter
ATTORNEY Fred Smith, QC, believes the government is acting outside of the limits of its powers through several measures designed to hammer down on shanty towns in Abaco, adding that in some respects, it has acted unlawfully.
In the days following Hurricane Dorian’s passage, the government issued a prohibition to build order for The Mud, Sand Banks, Farm and Pigeon Peas. Prime Minister Dr Hubert Minnis later announced a plan to compulsorily acquire these portions of land.
The government has also started to clean the areas, including bulldozing a few existing structures in Sand Banks, in Treasure Cay after the prime minister gave an order to do so.
However, according to Mr Smith these actions go against an existing injunction and do not conform to the Acquisition of Land Act. The prohibition order is also void and illegal, he maintained.
He accused Dr Minnis of heeding the cry of the “lynch mob” instead of rising above the fray to demonstrate respect for the rule of law and compassion for fellow Christians that have just suffered a terrible disaster.
In a 12-page strongly worded letter, he said the law was not a one-way street and should be respected by the government as the same is required by citizens.
Regarding the standing injunction, Mr Smith said it covers not only New Providence shanty towns, but those in Abaco. Last year Supreme Court Justice Cheryl Grant-Thompson granted the interlocutory injunction blocking evictions and service disconnections in those unregulated communities.
Mr Smith’s letter was delivered to the Attorney General’s Office on Monday night by Callenders & Co and signed by Martin Lundy for Mr Smith who is outside the country recuperating after a near fatal accident.
“Accordingly the injunction covers all shanty town land in New Providence as well as such land on Abaco as is occupied by specific applicants who are residents of shanty towns in Abaco,” the letter read. “We stress that recent events do not change the terms of the injunction, which remains in full force and effect unless and until varied by the court.
“Hurricane Dorian has not magically swept away their rights, as are being determined by this action.
“…Nor can the injunction be overridden or side-stepped by the use of other executive powers, which are alarmingly being vocally expressed, in very draconian and terrifying terms, to our clients, by the executive. The use of such powers for that purpose would be improper. The injunction must be obeyed.”
Mr Smith also shot down the validity of the government’s building ban.
The six-month prohibition order was issued last month by the Ministry of Housing under the Planning and Subdivision Act.
He said all zoning orders, including prohibition to build orders, must be made in conformity with a land use plan (LUP), which is mandated under Section 16 of the Act.
“To our knowledge, no LUP under the (Planning and Subdivision Act) has been created or published for Abaco. Accordingly the prohibition order is void, illegal and of no effect as there is no LUP for Abaco for it to be in conformity with.”
When contacted for comment, Attorney General Carl Bethel said the minister has six months to create the LUP. He said in the meantime the restriction on construction remained.
He did not respond to further questions on Mr Smith’s argument.
“The director of physical planning under the PSA, has had nine years, since 2010, to engage in consultations and develop an LUP for Abaco and has failed to do so,” Mr Smith said.
He also said: “We put you on notice that to that extent it is likely unlawful and liable to be quashed in a judicial review.
“We note with extreme concern the continued link that this government seeks to make between so-called ‘illegal’ migration as is apparent from, for example the article ‘PM orders acquisition of shanty town land’ published in The Tribune on October 3, 2019 and the occupation of the shanty towns in large part by those of Haitian ethnic origin.
“We remind you that the purposes of the PSA are listed in Section 3 of that Act and do not extend to anything that could remotely be considered relevant or connected to controlling or dealing with perceived illegal immigration to the Bahamas.
“It would appear that that decision to make the order has been infected by such improper purposes because we note that the order purports to extend only to shanty town land and not all land that was devastated by Hurricane Dorian.”
The letter continued: “We draw the inference that the government has picked shanty town land to make an order in relation to because of its preoccupation with illegal immigration. To the extent that such a purpose was a factor in making the order it would be liable to be quashed in a judicial review.
“In addition, it is clearly discriminatory as it targets those persons on the grounds of their place of origin and ethnicity, and it is clearly unlawful under the constitution. To put it bluntly, it is nothing but rank, transparent, inhuman and degrading discrimination. In any event we put you on notice that a prohibition to build order is exactly that and nothing more.”
As for the compulsory acquisition of the shanty town land, this is not unfettered or an executive act that the prime minister is responsible for in his capacity, Mr Smith said.
The attorney noted this mechanism under the Acquisition of Land Act 1913 is only engaged “whenever it appears to the minister responsible for the acquisition and disposition of lands that any particular land is needed for a public purpose.”
“The purpose of eradicating people from land based on their immigration status or ethnicity is plainly not a public purpose,” Mr Smith insisted yesterday, “nor is the purpose of defeating the injunction to the extent it applies in Abaco such a purpose.
“To the extent that the decision is based on or takes into account those purposes it would be unlawful and liable to be quashed in a judicial review.
“It is particularly concerning that the prime minister appears to have been motivated by, or took into account, what he is reported as describing as ‘noise about properties of shanty towns,’ which we take to mean vocal complaints about the towns and those who live there.
“The marketplace has been rabid with violent, racist, xenophobic, discriminatory, hateful diatribes and invective against the poor victims of Hurricane Dorian in the shanty towns in Abaco.
“It is distressing that the prime minister of the Bahamas heeds the cry of the lynch mob instead of rising above the fray demonstrating respect for the rule of law and compassion for fellow Christians that have just suffered a terrible disaster, and we respectfully encourage the prime minister to desist from further inflaming the fuels of violence in so many forms against our clients.
“Such considerations are plainly not relevant considerations and any decision based on it would be unlawful,” Mr Smith concluded.