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Nazim Burke scores a victory in court of appeal against Prime Minister Mitchell

Justice Louise Esther Blenman – delivered the ruling on behalf of the Justices on the Court of Appeal

“The protection of fundamental rights against arbitrary or excessive infringements is an essential feature of constitutional governments”.

Those were the words uttered by Court of Appeal judge, Justice Louise Esther Blenman in a ruling against the Keith Mitchell-led New National Party (NNP) and in favour of former Finance Minister, Nazim Burke.

The case involves a breach of the constitutional rights of a Pakistani man who married a Grenadian woman, by Prime Minister Mitchell in his capacity as Minister of National Security.

Within hours of returning to power after the 2018 general elections, Dr. Mitchell ordered Muhammed Ehsan deported from the island after a foreign intelligence agency provided information linking him to terrorism.

Ehsan retained the services of former Attorney General, Rohan Phillip of Lex Fidelis law firm to prevent the extradition but he was bundled out of the island without a hearing.

In handing down his judgment, the high court judge ruled that the Pakistani should be brought back to Grenada at government’s expense and that he should be awarded compensation of over EC$175, 000.00.

With attorney Phillip now serving as a judge in St. Lucia, the matter was argued before the Court of Appeal by Burke who came up against a team of State lawyers including Solicitor General, Dia Forrester and St. Kitts-born lawyer Frank Walwyn who operates out of Canada.

As a public service, THE NEW TODAY reproduces a continuation of the edited version of the judgment handed down November 27 by the Court of Appeal against the Mitchell-led administration in St. George’s.

Discussion and Conclusion
As the legislative and constitutional provisions are of sufficient importance to the resolution of this appeal, I shall recite the relevant provisions in some detail.

The Constitution

[1] Section 3 of the Constitution states:

“(1) No person shall be deprived of his or her personal liberty save as may be authorised by law in any of the following cases, that is to say-…”

(i) for the purpose of preventing the unlawful entry of that person into Grenada, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Grenada or for the purpose of restricting that person while he or she is being conveyed through Grenada in the course of his or her extradition or removal as a convicted prisoner from one country to another; or …

(6) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person or from any other person or authority on whose behalf that other person was acting.…”

[2] Section 8(8) of the Constitution provides:

“Any court or other authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time.”

[3] Section 12 of the Constitution provides:

“(1) No person shall be deprived of his or her freedom of movement, that is to say, the right to move freely throughout Grenada, the right to reside in any part of Grenada, the right to enter Grenada, the right to leave Grenada and immunity from expulsion from Grenada.

(2) Any restriction on a person’s freedom of movement that is involved in his or her lawful detention shall not be held to be inconsistent with or in contravention of this section.

(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision – …

(b) for the imposition of restrictions on the movement or residence within Grenada or on the right to leave Grenada of persons generally or any class of persons in the interest of defence, public safety, public order, public morality or public health and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society;

(d) for the imposition of restrictions on the freedom of movement of any person who is not a citizen of Grenada; …”

[4] Section 98 of the Constitution States:

“Any person who is married to a citizen of Grenada or who has been married to a person who was, during the subsistence of the marriage, a citizen of Grenada shall be entitled, upon making application in such manner as may be prescribed by or under a law enacted by Parliament, and if he or she is a British protected person or an alien taking the oath of allegiance, to be registered as a citizen of Grenada.”

[5] Section 99(2) of the Constitution states:

“Parliament may make provision for depriving of his or her citizenship of Grenada any person who is a citizen of Grenada otherwise than by virtue of section 94, 96 or 97 of this Constitution.”

The Citizenship Act

[1] Section 5 of the Citizenship Act states as follows:

“(1) Upon application made to the Minister in the prescribed manner, the Minister may cause any person of full age and capacity who is a Commonwealth citizen or a citizen of the Republic of Ireland to be registered as a citizen if the Minister is satisfied –

(a) that the person is of good character;

(b) that he or she has an adequate knowledge of the English language;

(c) that he or she has either resided in Grenada or has been in service under the Government, or has had partly such residence and partly such service throughout a period of five years or such shorter period (not being less than twelve months) as the Minister may in the special circumstances of any particular case accept, immediately preceding the date of his or her application; and

(d)   that he or she intends, if registered, to reside in Grenada or to enter or continue in service under the Government.

(3) A person married to a citizen shall be entitled, on making application therefor to the Minister in the prescribed manner, and, if that person is a British protected person or an alien, on taking the oath of allegiance, to be registered as a citizen whether or not that person is of full age and capacity.”

[1] Section 9(2)(b) stipulates that:

“The Minister may by Order made under this paragraph deprive a citizen of his or her citizenship if he or she is satisfied that it is in the interest of national security to do so and, in that case, subsections (5) and (6) shall not apply.”

[2] Section 9(5) of the Citizenship Act states:

“Before making an Order under this section the Minister shall give the person against whom the Order is proposed to be made notice in writing informing him or her of the ground on which it is proposed to be made and of his or her right to an inquiry under this section.”

[3] Section 9(6) of the Citizenship Act provides that:

“If the person against whom the Order is proposed to be made applies for an inquiry, the Minister shall refer the case to a committee consisting of a chairman being a barrister or solicitor appointed by the Minister and such other members appointed by the Minister as he or she thinks proper.”

The Immigration Act

[1] Section 4(1) of the Immigration Act states that:

“Except with the authority of the Minister and subject to such conditions as to duration and place of residence, occupation, or any other matter or thing as the Minister may think expedient, an immigration officer shall not grant leave to an alien to enter Grenada if the alien is a prohibited alien that is to say – …

(f) a person who, from information or advice received from the government of any other country through official or diplomatic channels, is deemed by the Minister to be an undesirable inhabitant of or visitor to Grenada;…”.

[1] Section 26(1) states that: ‘The Minister may in any of the cases mentioned in subsection (2) make a deportation order requiring an alien to leave or to be removed from and to remain out of Grenada.’

[2] Section 26(2) stipulates that:

“Subject to the provisions of this Act, the Minister may make a deportation order in the case of an alien who is- …

(b) an undesirable person;

… or

(d) a prohibited alien.”

Issues on appeal

[3] I now turn to issues (i), (ii), and (iii) which I repeat for convenience:

(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.

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

(ii) 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.

[1] I propose to address issues (i), (ii) and (iii) together since they are inextricably linked. Contrary to what has been urged on this Court, the appeal has greater significance than Mr. Ehsan. Its significance extends to all naturalized citizens of Grenada. At the heart of this appeal is the important question of whether it is constitutional to deprive a person of citizenship, who has obtained citizenship by naturalization in Grenada, without affording that person a hearing once it is deemed necessary in the interest of natural security to revoke that citizenship.

[2] The material part of the Citizenship Act was introduced on 5th October 1984.

This acknowledgment suffices for present purposes. It is common ground that Mr. Ehsan was a naturalized citizen and that his citizenship was revoked by the Minister responsible for Citizenship, on the basis that it was in the interest of the natural security of Grenada to so do since he was identified as a terrorist. For the purposes of this discussion, the starting point must be whether Mr. Ehsan, having acquired citizenship through section 98 of the Constitution and having been registered as a citizen, is entitled to the constitutional protections that are afforded to persons by the Constitution. The answer to that question is in the affirmative.

[1] However, it is settled law that constitutional rights are not absolute. Indeed, the State, in appropriate circumstances through legislation, can restrict or abrogate the constitutional rights of persons. Any such restriction or abrogation of constitutional rights by Parliament is subject to the judicial review of the court in order to determine their constitutionality. All of this is undergirded by the well-known doctrine of supremacy of the Constitution. This is well settled, and there need be no detailed recitation of these trite principles.

[2] Section 99(2) of the Constitution enables Parliament to legislate for the deprivation of citizenship of persons who have obtained citizenship through marriage.

It is not in dispute that the Parliament of Grenada, acting pursuant to the power conferred on it by section 99(2) of the Constitution, enacted section 9(2)(b) of the Citizenship Act, which permits the Minister responsible for Citizenship to deprive a citizen by naturalisation of his or her citizenship, if the Minister is satisfied that it is in the interest of natural security to do so and in that case subsections (5) and (6) shall not apply.

[3] As alluded to earlier, subsections (5) and (6) respectively require that, before making an order under the section, the Minister responsible for Citizenship shall give the person against whom the order is proposed to be made notice in writing informing him or her of the ground on which it is proposed to be made, of his or her right to an inquiry and to refer his or her case before a committee where the person applies for an inquiry.

The effect of section 9(2)(b) therefore is that there is no obligation on the part of the Minister responsible for Citizenship to notify the person to be affected of the ground on which he proposed to act, and no opportunity for inquiries is afforded to such a person. This is clearly in contradistinction to the rights of the other naturalized citizens whose citizenship is open to revocation on bases other than national security.

In my view, Mr. Ehsan is the conduit through whom the constitutional challenge is launched. However, the issue is wider than him, and his constitutional claim. Indeed, the appeal brings into sharp focus the issue of whether there is a right to be heard before the deprivation of a person’s right to citizenship which was acquired through naturalisation.

As a starting point, it is indisputable that section 8(8) of the Constitution provides for the protection of the law or due process of law. The modern approach to the right to protection of the law and its expansive nature has received judicial recognition in a strong stream of jurisprudence both from the Judicial Committee of the Privy Council and the Caribbean Court of Justice. Indeed, in Maya Leaders Alliance the Caribbean Court of Justice (CCJ), speaking through the learned Anderson JCCJ stated at paragraph 47:

“The law is evidently in a state of evolution but we make the following observations. The right to protection of the law is a multi-dimensional, broad and pervasive constitutional precept grounded in fundamental notions of justice and the rule of law. The right to protection of the law prohibits acts by the Government which arbitrarily or unfairly deprive individuals of their basic constitutional rights to life, liberty or property. It encompasses the right of every citizen of access to the courts and other judicial bodies established by law to prosecute and demand effective relief to remedy any breaches of their constitutional rights. However the concept goes beyond such questions of access and includes the right of the citizen to be afforded, ‘adequate safeguards against irrationality, unreasonableness, fundamental unfairness or arbitrary exercise of power.’ The right to protection of the law may, in appropriate cases, require the relevant organs of the state to take positive action in order to secure and ensure the enjoyment of basic constitutional rights. In appropriate cases, the action or failure of the state may result in a breach of the right to protection of the law. Where the citizen has been denied rights of access and the procedural fairness demanded by natural justice, or where the citizen’s rights have otherwise been frustrated because of government action or omission, there may be ample grounds for finding a breach of the protection of the law for which damages may be an appropriate remedy.”

[1] In Sam Maharaj v Prime Minister the appellant appealed to the Privy Council against the decision of the Court of Appeal to award him declaratory relief but not damages on his claim for judicial review of the failure of the government of Trinidad and Tobago to provide him with a response to his request for reappointment as a member of the Industrial Court. The appellant alleged that the failure of the government to verify certain allegations made against him, which were instrumental in preventing his reappointment, constituted a breach of his right to the protection of the law. Allowing the appeal and endorsing the expansive approach to the application of the right to protection of the law, the Board stated the following:

“On the issue of possible assistance which might have been derived from “learning the opinions of the judges of the local courts”, the Board is satisfied that this is not a reason to refuse to allow the appellant to advance the constitutional argument. In a series of cases where the protection of the law provision in constitutions in various Caribbean countries was considered, an expansive approach to its potential application has been taken.

Cognisance must be paid to the fact that the Constitution clothes persons with fundamental rights. These rights are protected and cannot be abrogated except in very clear cases and, critically, this must be in accordance with the law in order for any encroachment on these fundamental rights to withstand scrutiny for unconstitutionality.

Looking a bit closer at the underlying facts, Mr. Ehsan, having been issued a Certificate of Registration, evidently acquired rights based on his marriage to a Grenadian by birth pursuant to section 5(3) of the Citizenship Act, and he was deprived of his rights to due process of the law by the Minister responsible for Citizenship pursuant to section 9(2)(b) of the Citizenship Act. He was, as a consequence of the revocation of his citizenship, deemed to be a prohibited alien by the Minister for Immigration. Ultimately, the Minister for Immigration issued a Deportation Order.

In the court below, it seems as though Mr. Ehsan provided evidence which has not been controverted namely that he lived and worked in Grenada for several years from 2011 before marrying his co-worker Lyndonna Elizabeth Newton on 13th February 2015. He applied in December 2015 to be registered as a citizen of Grenada. In March 2018, after some initial reluctance to register him, on the basis of the State having received an adverse due diligence report in relation to him, he was granted citizenship after the intervention of his then lawyer.

(TO BE CONTINUED)