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Another defeat in court for PM Mitchell

Prime Minister Mitchell – suffered another defeat in court

The Court of Appeal has delivered another bitter blow in a ruling against Grenada’s longest serving Prime Minister, Dr. Keith Mitchell.

The Justices of Appeal found fault with the decision taken by Dr. Mitchell shortly after he won the 2018 general election to deport Pakistani national, Ehsan Muhammed from the island on the grounds that he was suspected of engaging in terrorism.

Prime Minister Mitchell ordered security forces to crack down on Muhammed after allegedly receiving reports from a Western intelligence source that the Pakistani who had married a local woman to get Grenadian citizenship was on their list as a terrorist.

When the non-national was held, he retained the services of former Attorney General, Rohan Phillip to challenge the deportation order before a judge sitting in the high court.

Muhammed was deported without the judge getting to hear the matter.

In a ruling against the State, the judge said that Prime Minister Mitchell acted in violation of the constitutional rights of the Pakistani national and ordered the government to pay the expenses of the claimant to bring him back to Grenada.

The state appealed the judge’s decision but the Court of Appeal stuck with the judge except with some variations to the original court order.

As a public service, THE NEW TODAY highlights some aspects of the ruling from the Court of Appeal:

Case Below
On the same date, being 27th April 2018, on which the injunction was discharged, Mr. Ehsan filed a constitutional motion in which he challenged, among other things, the legality of the revocation of his citizenship, the Deportation Order, his arrest and detention in police custody and the alleged prevention by the police officers to allow him to communicate with his lawyer. He also took issue with the alleged seizure of his passport.

In his constitutional motion, Mr. Ehsan contended that the actions of the Ministers responsible for Citizenship and Immigration abrogated his constitutional rights to due process and protection of the law as provided by section 8(8) of the Constitution and, is therefore void.

He also complained that the deprivation of his citizenship without giving him an opportunity to be heard is in breach of natural justice and his constitutional right to due process and protection of the law as stipulated by section 8(8) of the Constitution.

He further challenged the constitutionality of section 9(2)(b) of the Citizenship Act to the extent that it derogated from the principles of natural justice and infringed section 8(8) of the Constitution.

Mr. Ehsan also complained that his arrest and detention by the members of the police force were unlawful and asserted that the seizure of his Pakistani passport was unlawful. He asserted further that the decision of the Minister responsible for Citizenship to revoke his citizenship was irrational, unreasonable, arbitrary and a breach of section 8(8) of the Constitution.

On the bases of those alleged breaches, Mr. Ehsan sought numerous declarations which need not be recited. Importantly, in the constitutional motion, Mr. Ehsan sought damages against the State of Grenada for alleged breaches of his constitutional rights. Mr. Ehsan deposed to affidavit evidence in which he made complaints, all aimed at substantiating his grievances with the State of Grenada in relation to its treatment of him. The constitutional motion was strenuously resisted by the State of Grenada.

Issues in the High Court
Five main issues arose for the judge to resolve:

(i)Whether section 9(2)(b) of the Act contravenes the right to natural justice, due process of law and the right to a fair hearing as guaranteed by section 8(8) of the Constitution of Grenada and was thereby null and void;

(ii)Whether section 8(8) of the Constitution guarantees Mr. Ehsan a right to be heard prior to the revocation of his citizenship notwithstanding section 9(2)(b) of the Act;

(iii)Whether the Deportation Order that was issued by the Minister for Immigration was unlawful, null and void;

(iv)Whether the arrest and detention of Mr. Ehsan and the retention of his passport violated his constitutional rights; and

(v) If so, what, if any, damages ought to be awarded to him.

Judgment Below
Having given deliberate consideration to the competing positions, the judge made a number of findings of law and fact, all favourable to Mr. Ehsan, which need not be rehearsed. Of significance is the fact that the learned judge in a reasoned written judgment made the following declarations and orders:

(1) A Declaration is granted that the words “and in that case subsections (5) and (6) shall not apply” appearing at section 9(2)(b) of the Citizenship Act of Grenada infringes section 8(8) of the Grenada Constitution and is therefore null and void.

(2) A Declaration is granted that the revocation of the claimant’s citizenship without giving him an opportunity to be heard is in breach of his right to equal protection of the law under section 8(8) of the Grenada Constitution.

(3) A Declaration is granted that the Citizenship (Deprivation) (Muhammad (sic) Ehsan) (Order) dated 4th April 2018 is null and void.

(4) A Declaration is granted that the arrest, detention and retention of (sic) [the] passport of the claimant were in breach of sections 3, 6, 8 and 12 of the Grenada Constitution.

(5)Damages are awarded in the sum of $25,500 as compensation for the Claimant’s loss of earnings.

(6) The Government of Grenada is ordered to procure an economy class ticket for the claimant for his repatriation from Pakistan to Grenada.

(7) Vindicatory damages are awarded in the sum of $155,000.00 for the various breaches of the Claimant’s constitutional rights.

(8)Interest at the statutory rate of 6% is awarded on the damages from date of judgment until payment.

(9)Prescribed costs are awarded to the Claimant.

Grounds of Appeal
The Attorney General is aggrieved by the reasoning, decision and declarations of the learned judge and has filed six (6) grounds of appeal together with several sub-grounds. In contradistinction, Mr. Ehsan has implored this Court to affirm the decision of the learned judge on the basis that there was no error of law or fact and critically that the learned judge’s reasoning and conclusion cannot be impugned.

During the oral arguments, and based on the written submissions, several condensed issues emerged for this Court to resolve.

Condensed Issues on Appeal
The following condensed issues arise to be resolved as a consequence of the refined oral arguments and a careful reading of the written submissions:

(i)Whether the learned judge erred in concluding that section 9(2)(b) of the Citizenship Act contravened section 8(8) of the Constitution of Grenada and violated Mr. Ehsan’s right to natural justice.

(ii)Whether the learned judge erred in concluding that the Minister’s revocation of Mr. Ehsan’s citizenship, without affording him a hearing was unlawful.

(iii)Whether the learned judge erred in concluding that Mr. Ehsan’s constitutional rights were breached by the State of Grenada due to his deportation, arrest, detention and the seizure of his passport.

(iv)Whether the learned judge erred in awarding damages for wrongful arrest, detention and the seizure of Mr. Ehsan’s passport.

(v)Whether the learned judge erred in awarding Mr. Ehsan vindicatory damages.

Appellant’s Submissions
Learned Counsel Mr. Frank Walwyn argued that the judge made several fatal errors. He argued that the Constitution allowed Parliament to legislate for a carve out in relation to the fundamental rights provisions. He was adamant that the learned judge approached the case from an entirely wrong perspective. He sought to persuade this Court that it was correct for the Minister responsible for Citizenship to have determined that Mr. Ehsan was a security risk and therefore revoke the Grenadian citizenship which had been conferred on Mr. Ehsan, without affording him a hearing.

Mr. Walwyn was respectful yet strident in his view that it was constitutional for the Minister responsible for Citizenship to deprive Mr. Ehsan of his citizenship without affording him an opportunity for a hearing since this was clearly permissible by section 9(2)(b) of the Citizenship Act. He took issue with what is said to have amounted to the learned judge going behind the determination of the Minister of National Security that Mr. Ehsan was a security risk to Grenada based on intelligence information that had been obtained by the State of Grenada which indicated that Mr. Ehsan was a terrorist.

Mr. Walwyn sought to rely on Council of Civil Service Unions and others v Minister for the Civil Service (“CCSU”) in arguing that it was impermissible for the judge to seek to interrogate the determination that was made by the Minister of National Security, in the manner in which he did. Accepting that Mr. Ehsan was not afforded a right to be heard before his Grenadian citizenship was revoked, nevertheless, Mr. Walwyn maintained that Mr. Ehsan was not entitled to be heard. To buttress his argument, Mr. Walwyn said that since section 9(2)(b) of the Citizenship Act indicated that there was no such right, the Minister’s decision cannot be criticised since there was no breach to section 8(8) of the Constitution.

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Mr. Walwyn reminded this Court that the right to a fair hearing can be curtailed in the public interest and matters of natural security are clearly within the public interest. He maintained that the Minister responsible for Citizenship was clothed with the power to deprive a naturalised citizen of citizenship without affording him or her a hearing, and this accords with the intention of the Parliament of Grenada as provided by section 9(2)(b) of the Citizenship Act. Accordingly, he submitted that the act of revocation by the Minister responsible for Citizenship was constitutional.

Alternatively, and to complement the State’s position, Mr. Walwyn stated that the conduct of the Minister responsible for Citizenship was in any event rational and proportionate. Any constitutional violation would thereby be saved from being unlawful. He reiterated that it was constitutionally permissible to deprive Mr. Ehsan without giving him a hearing since the legislature specifically provided for this.

He urged this Court to hold that, in any event, the deprivation of Mr. Ehsan’s citizenship was rational, proportionate and constitutional.

Next, Mr. Walwyn complained that given the underlying factual context, the learned judge was required to determine whether the Citizenship Act accorded with section 8(8) of the Constitution. He said that if the judge had properly done so he would have concluded that it did, and he sought to rely on the well-known principle of the constitutionality of legislation to undergird his argument.

In oral submissions, Mr. Walwyn, though not in any way conceding that the judge was correct in determining that section 9(2)(b) was unconstitutional, posited that even if the judge was correct in finding that Mr. Ehsan’s constitutional rights as provided by section 8(8) were violated, the judge should not have struck down the offending parts of section 9(2)(b) generally, but should only have struck down the State’s conduct specifically in relation to Mr. Ehsan. He therefore urged this Court to set aside the judge’s decision in so far as it was held that section 9(2)(b) is violative of section 8(8) of the Constitution.

In so far as he took the view that the revocation of Mr. Ehsan’s citizenship and his subsequent arrest and detention were lawful and in accordance with the Constitution, Mr. Walwyn argued that the judge erred in awarding damages to Mr. Ehsan. He pointed out that the judge committed errors of principle in his determination that Mr. Ehsan was entitled to the damages which the judge ordered the State of Grenada to pay to him.

Turning to the question of the quantum of damages, Mr. Walwyn submitted that even if the Court were to conclude that there were indeed breaches of Mr. Ehsan’s constitutional right, the quantum of damages that the judge awarded to Mr. Ehsan was exorbitant and could not be sustained. He said that the evidence before the learned judge was very scant and that the judge could not have relied upon that to make the awards that he did.

Mr. Walwyn took the Court through the affidavit evidence which he complained was made of conjecture and the majority of which was inadmissible. He said that the decision on damages, on any view of the facts, was plainly wrong. He also submitted that the judge in his determination of the appropriate level of compensation did not advert his mind to the duty that Mr. Ehsan owed and his legal requirement to mitigate his losses.

Mr. Walwyn pointed out that there was no evidence emanating from Mr. Ehsan upon which the judge could have awarded the damages that he did. Most of the judge’s observations, Mr. Walwyn opined, were pure conjecture. He therefore urged this Court to set aside the awards of damages that were made by the judge on the main issues.

Mr. Walwyn criticised the judge for awarding Mr. Ehsan vindicatory damages in factual circumstances where it clearly was unwarranted.

He urged this Court to hold that the judge, in so doing, committed errors in principle and he was adamant that there was no basis upon which the learned judge could have properly awarded Mr. Ehsan vindicatory damages. Accordingly, he implored this Court to set aside that award in its entirety.

Respondent’s Submissions
Learned counsel Mr. V. Nazim Burke argued that the learned judge did not err in striking down the offending words of section 9(2)(b) of the Citizenship Act as being in contravention of section 8(8) of the Constitution. He disagreed that the limitations on the right to be heard were not violative of Mr. Ehsan’s constitutionally protected right.

Mr. Burke insisted that the judge was very careful in his reasoned judgment and conclusion that the limitations that section 9(2)(b) imposed were disproportionate and irrational. He asserted that the judge did the requisite evaluation and undertook the requisite balancing exercise all aimed to ascertain whether the infraction against a citizen’s right to due process before their citizenship could have been properly revoked was proportionate. He emphasised that on no view of the facts could section 9(2)(b) withstand the scrutiny of the court.

Mr. Burke maintained that the judgment in the lower court illustrated that the judge was alive to all of the relevant principles of law and the constituent stream of jurisprudence evidenced by cases from the Caribbean Court of Justice such as Maya Leaders Alliance and others v Attorney General and decisions of the Privy Council such as Jamaicans for Justice v Police Service Commission and another,8 all of which underscore the requirement of due process.

Mr. Burke also highlighted the fact that the judge scrutinised the evidence that was adduced by the State and he further indicated that the judge faithfully applied the principles in CCSU to the facts of the case in supporting the conclusion to which he arrived.

He urged this Court to uphold the decision of the judge that the revocation of Mr. Ehsan’s citizenship by the Minister responsible for Citizenship, without giving him a hearing, violated section 8(8) of the Constitution.

Consequentially, he advocated that the judge did not err in concluding that the purported deprivation of Mr. Ehsan’s citizenship was unlawful, null and void and therefore, by extension, the Deportation Order had to be struck down.

Mr. Burke disagreed with the State and asserted that there is no basis upon which this Court could properly impugn the decision of the judge.

Turning to the question of damages, Mr. Burke underscored the fact that Mr. Ehsan was arrested and detained in police custody for several days. In so far as this was in breach of the constitutional right as provided by section 8(8), Mr. Burke submitted that Mr. Ehsan was entitled to be compensated for the breach and all of the conduct that affected him and flowed therefrom.

Mr. Burke, however, accepted that there was very little or no evidence before the judge in relation to Mr. Ehsan upon which the judge could have concluded that Mr. Ehsan was emotionally distressed and desired to return to Grenada, save for the information emanating from Mr. Ehsan’s former employer.

Mr. Burke submitted that at the very least, Mr. Ehsan was entitled to be compensated for breach of his constitutional rights by the State of Grenada. The judge, he argued, was correct to compensate Mr. Ehsan for the wrongful arrest and detention.

Mr. Burke was of the view that the damages that were awarded by the judge were not exorbitant, and he referred the Court to a few cases in which he sought to take comfort in advocating his position.

In relation to the vindicatory damages, Mr. Burke sought to defend the correctness of the award but without as much stridency for reasons which will become evident shortly. He nevertheless argued that Mr. Ehsan was entitled to be awarded vindicatory damages even though it was open to this Court to reduce the quantum.

Mr. Burke quite professionally accepted that the evidential basis in relation to the quantum of damages was very thin since by this time Mr. Ehsan had returned to Pakistan and had not provided any further evidence to assist the court. Quite properly and professionally, Mr. Burke also acknowledged that Mr. Ehsan had the legal obligation to mitigate his losses and that there was no evidence forthcoming from him to assist the Court in that regard.

Finally, Mr. Burke urged this Court to uphold the decision of the judge in relation to the constitutional breaches and to fashion an appropriate remedy for damages for the constitutional breaches.

(TO BE CONTINUED)