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Nazim Burke scores court victory over PM Mitchell

Prime Minister Mitchell – suffered another major loss in court

Former Finance Minister Nazim Burke is smarting over a victory in court against Prime Minister Dr. Keith Mitchell.

The Court of Appeal ruled in favour of Burke and his client in a matter in which Prime Minister Mitchell was found to have acted unconstitutionally in deporting a Pakistani national from Grenada.

The non-national, Muhammed Ehsan was granted Grenadian citizenship after he married a local woman.

However, a foreign government presented information to Prime Minister Mitchell that the Pakistani was on their list as a terrorist.

The Grenadian leader moved to deport Ehsan before his constitutional motion filed against the State was heard by a high court judge who eventually ruled in his favour.

Prime Minister Mitchell appealed the decision but the Court of Appeal upheld the ruling of the high court in the main.

Following are excerpts from the ruling of the Court of Appeal:

It cannot be gainsaid that, quite apart from the constitutional requirement, basic procedural fairness requires that a person be heard before his or her rights can be impacted. There are obvious exceptions which are countenanced by the law but these must be very rare. Indeed the responses must be proportionate and rational in relation to the mischief at which they are aimed. Importantly, it is the duty of the State of Grenada not to restrict or fetter persons’ fundamental rights except in so far as the limitations are reasonably justifiable in a democratic society and are proportionate.

The jurisprudence has evolved over decades so as to permit the State to fetter or abrogate the fundamental rights of citizens to the extent that it can be demonstrated by the State that it is reasonably justifiable in a democratic society.

The law has further developed over decades to require the State to prove that the responses that it has taken which have the effect of encroaching on persons’ fundamental rights are proportionate, failing which, the courts have consistently struck down overreaching and disproportionate responses by the State.

In order to be held to be constitutional, any restriction on a fundamental right to due process must be prescribed by law. In addition, there is the prerequisite that the restriction must serve one of the prescribed purposes recognised as a human or fundamental right and must be necessary to achieve the objective.

Generally, and of great significance is that the onus of proof is on the person who seeks to limit the right. The standard of proof is that of the balance of probabilities.

The limitations on the right to due process of the law need to be necessary or reasonably justifiable in a democratic society. In order to determine whether a limitation meets this required standard, the courts have adopted the proportionality test.

Indeed, the requirement of being reasonably justifiable in a democratic society applies an element of proportionality, in the sense that the scope of the restriction imposed must be proportional to the value which the restriction serves to protect.

Allowing the appeal, the court held that the decision to deport, in the circumstances, was not in conformity with the principles of natural justice since in the absence of reasons for expulsion, the appellant did not know the nature of the accusation against him when he made his representations and he was not given adequate opportunity to state his case.

This would naturally affect the fairness of the decision against him, and therefore it nullified and rendered ineffective any enforcement or purported enforcement of the expulsion order.

To say the least in relation to the appeal at bar, the legislative provision enacted in 1984 which permit the Minister responsible for Citizenship to revoke the citizenship of a person without even giving that person the slightest possibility of due process, is draconian.

The State’s thesis, that once the Minister has received adverse reports about the naturalized citizen, the court’s jurisdiction is ousted from enquiring into the constitutionality of this order, is misplaced.

The gravamen of the Attorney General’s appeal is not only to uphold the conduct of the Minister responsible for Citizenship, but also to support the wide legislative provision which confers on the Minister the power to revoke the citizenship which has been acquired by a natural citizen through marriage to a Grenadian by birth.

The blame in this appeal must be placed entirely at the feet of Parliament for conferring this very wide and unfettered power on the Minister responsible for Citizenship to revoke the citizenship of a naturalized citizen without even affording the person to be affected the barest of the right to be heard.

While the courts frown on terrorism and can well appreciate the concerns of governments, in my view, here, fundamental rights are in issue.

The courts are required to protect those fundamental rights by closely reviewing the legislation in order to ensure that offending provisions are impugned. The court is not precluded by any prescription of constitutionality from examining the legislation which seeks to restrict those rights.

It is imperative for the court to determine whether Parliament’s response to the important matter of national security is proportionate, when viewed in the context of the curtailing of fundamental rights.

The derogation from the adherence to due process of law on the basis of national security without attempting to give the person to be affected notice, nor any semblance of even a modified right to make enquiry, can only be justified as being reasonable and justifiable in a democratic society, in exceptional circumstances. There are no exceptional circumstances present in the appeal as will become apparent shortly.

In all of this, to be clear, I give full weight to the presumption of constitutionality, but I think that this in no way releases the legislation from the scrutiny of the court in order to ascertain its constitutionality. What is glaring, however, by way of omission is the absence of any machinery or mechanism through which a naturalized citizen can even question the decision, of the Minister responsible for Citizenship, to revoke the citizenship if he determines that national security warrants such revocation.

As alluded to earlier and save perhaps in extreme situations of imminent danger, it could never be reasonably justifiable to relieve a citizen of his citizenship, without even affording him an audience or providing even an administrative channel through which he could raise any concerns he or she may have with the proposed revocation.

In a democratic society, it is almost too obvious to need stating even to those who advocate for the total erosion of the right to due process of the law, that this position is unsustainable as a general principle. I am not persuaded that without any qualification or any due process mechanism built in, such a provision as section 9(2)(b) would meet the condition that it is reasonably justifiable in a democratic society to protect national security.

The provision, in my view, is too wide in its scope and application and, as indicated in de Freitas, ‘excessively invades the enjoyment of the guaranteed right according to the standards of a society that has a proper respect for the rights and freedoms of the individual’.

I emphasise that it is quite proper for a legislative provision to enable constitutionally protected rights to be partially limited to a specified extent and for certain democratically justifiable purposes. Many rights guaranteed to citizens of democratic countries must be limited or qualified in order to prevent conflicts with other rights or with certain general interests. However, the limitations, qualifications or restrictions should not be taken too far or misapplied. The protection of fundamental rights against arbitrary or excessive infringements is an essential feature of constitutional governments.

Concerns about national security are a legitimate interest of the State and restrictions on citizens’ fundamental right are permissible, however they must be proportionate.

I am guided by the above enunciations and take the view that a mechanistic approach ought not to be adopted in this case. Let me say straight away, that it is no answer to a challenge to the constitutionality of legislation for the State to assert, as it did, that the citizens have placed elected representatives and not the court at the helm of this matter of high policy – national security.

To accept that position as a basis for ousting the court’s jurisdiction to scrutinise legislation for constitutionality would violate decades of consistent constitutional jurisprudence, which recognise the supremacy of the Constitution and which have consistently been interpreted by courts, in the Commonwealth Caribbean, as clothing the court with the jurisdiction to determine the constitutionality of legislation.

The principle of supremacy of the Constitution is so well-known and has been reflected in a strong stream of decisions which do not need to be rehearsed, nor recited.

The fact that the constitutional challenge is premised on breaches of Mr. Ehsan’s fundamental right as provided for in section 8(8) of the Constitution, effectively dismisses any argument about non-justiciability of the legislation, on the basis that it is a matter of high policy which falls within the remit of Parliament.

Nevertheless, it is equally accepted that national security requirements are recognised as bases on which procedural fairness may be displaced, as was enunciated by Lord Diplock in CCSU.

However, when the challenge is based on allegations of breaches of fundamental rights such as due process (as provided for in section 8(8) of the Constitution), the court cannot do what the State has invited it to do and decline to interrogate the merits of the challenge merely on the basis that it is a matter of national security and therefore falls out with the purview of the court.

The State advocated that issues of national security supersede any fundamental right to be heard. However, no authority for that proposition has been provided to this Court and neither am I aware of any. With the greatest respect to the courteous yet careful arguments advanced by the State in support of this proposition that the interest of the public should prevail over the interest of citizens, in relation to national security, this is not an accurate representation of the law.

Furthermore, for the State to assert as it did that a review of the legality of the conduct of a Minister is ousted on the basis of the non-justiciability principle is to misapprehend the overarching principles of constitutionalism.

The court does not get to evaluate the correctness or otherwise of the acts of a Minister, or their legality, without first ascertaining that the constitutionality of the legislative provisions which empower the Minister to act in the way he did is constitutional. The foundation of the actions of the Minister responsible for Citizenship is section 9(2)(b) of the Citizenship Act, which authorised him to revoke the citizenship of Mr. Ehsan without affording him due process of law.

It is only if that section of the Citizenship Act is held to be constitutional that the court may then go on to examine the lawfulness of the Deportation Order and the resulting arrest and detention of Mr. Ehsan.

With the greatest respect, I am of the view that the arguments that were advanced by the State in prosecuting the appeal indicated that the appeal was approached from an entirely wrong perspective. It has consistently been the approach of the courts, when the constitutionality of actions taken by state officials is brought into question, to determine first whether or not the legislation that confers power on those state officials is constitutional.

It must be remembered that the essence of Mr. Ehsan’s appeal is that section 9(2)(b) of the Citizenship Act is unconstitutional. If the court were to conclude that section 9(2)(b) of the Citizenship Act is unconstitutional, everything that flows therefrom will be null and void or unlawful.

It cannot be over-emphasised that concerns about terrorism are important matters of national security. However, it is unfair to criticise the judge for assessing the constitutionality of section 9(2)(b) of the Citizenship Act in circumstances where the attack was specifically launched by Mr. Ehsan against the constitutionality of that section. To the contrary, this was precisely what the judge was required to do.

I am of the considered opinion that although the response necessary to protect national security was a matter of political judgment for the Executive and Parliament, where fundamental rights are in issue, especially where they are buttressed by a written constitution, the court is required to afford them effective protection by adopting an intensive review of whether the fundamental right had been impugned.

The court is not precluded by any doctrine of deference to Parliament from examining the proportionality of a measure taken which restricts a person’s most fundamental rights, and therefore section 9(2)(b) of the Citizenship Act is called for close scrutiny.

The essential question this Court has to determine is whether there is any merit in the arguments advanced by the State on the constitutionality of the Citizenship Act. In applying the principles on proportionality to the appeal at bar, this Court is required to assess section 9(2)(b) of the Citizenship Act against section 8(8) of the Constitution.

There is no automatic superiority of legislation that is aimed at promoting or protecting national security over the fundamental rights as provided by the Constitution. To the contrary, the proportionality test mandates the court to undertake an assessment of the impugned legislative provisions and to carry out a balancing exercise in order to determine whether the legislation infringes the fundamental rights provision of the Constitution in an impermissible manner.

Where the State asserts that the legislative response to the issue of national security is proportionate, it behooved the State to provide the court with evidence as to the policy, socio-economic and procedural reasons that undergird the draconian amendment to section 9(2)(b) of the Citizenship Act.

It is noteworthy and quite surprising that the State did not appear to adduce a scintilla of evidence from the requisite high officials in order to justify the invasion of persons fundamental rights by section 9(2)(b). Instead, the State relied upon the affidavit evidence of police officer Leroy Joseph who deposed that the State had received intelligence which indicated negatively about Mr. Ehsan. He said that it is this negative information, including that Mr. Ehsan was a terrorist that caused the Minister responsible for citizenship to revoke his citizenship without giving him even the minimum of a hearing.

The Minister for Immigration then issued the Deportation Order which authorised Mr. Ehsan’s removal from Grenada.

With no disrespect intended to the police officers, it is strange, where there is a challenge to the constitutionality of legislative provision, for the person who provides the evidence to resist that attack to be a police officer who acted pursuant to the legislation. In my view, the State needed to provide evidence, apart from that of the police officer, upon which the State of Grenada could have relied to show that Parliament, at the date of enacting the legislation, showed fidelity to the relevant principles enunciated in Oakes.

At the very least, a senior functionary, perhaps such as a Permanent Secretary, ought to have deposed to evidence which provided the policy reasons that influenced the introduction of the limitations imposed in 1984, to the Citizenship Act.

In my view, and as foreshadowed, this appeal has very little to do with the actions of the Ministers responsible for Citizenship and Immigration (which is what the police officer’s evidence generally spoke to) and everything to do with the actions of the Parliament of Grenada that enacted section 9(2)(b) of the Citizenship Act, being the impugned aspect of the statute in 1984.

The State did not adduce the evidence as it was required to do in order to substantiate the oral submissions that were made in relation to assertions of policy considerations in relation to national security. The requisite evidence was entirely absent from this case. The judge therefore cannot be criticised in his decision in that regard. He was in fact very generous to the State in his approach to the matter.

Based on all that I have foreshadowed, it is evident that I agree with the judge that a less intrusive method, short of eroding all of the constitutional safeguards, could have achieved the desired purpose even in circumstances where national security is in issue.

There seemed to be undue focus on the actions of the Minister responsible for Citizenship instead of properly scrutinising the legislative provisions which are the genesis of this entire appeal. The actions of the Minister responsible for Citizenship and the conduct of the relevant officials were clearly undertaken on the basis that section 9(2)(b) of the Citizenship Act was lawful. In my respectful view, the entire premise of the State in resisting the constitutional challenge was misconceived. The State ought to have focused in the lower court on the policy reasons which undergird the enactment of such draconian legislation in 1984.

While national security is a legitimate basis to curtail the fundamental rights of citizens, Parliament has a responsibility to enact laws that enable rights to be prudently limited only to the extent that it is necessary to protect the public good and national security and without undermining fundamental rights of citizens.

An examination of the legislative provisions which permit the revocation of citizenship of naturalised persons, on the basis of national security, reveals that the provision does not seem to require the barest minimum for even a modified form of hearing. It is even more egregious that in all circumstances, no notice is required. Parliament, in drafting the provisions, should have given careful consideration to the wording of the clause.

By way of emphasis, the settled jurisprudence has increasingly relied on the concept of proportionality, that is to say, that the limitation on the right must be proportionate to the effect to be produced by limiting the right. Section 9(2)(b) is rigid and inflexible with no built-in safeguards. It is excessive on any application of the proportionality test.

The draconian nature of that provision could be understood in circumstances of a public emergency or terrorist threat which threatens the life of the nation or in the State. One would expect the existence of exceptional circumstances to justify this sort of extreme response by Parliament. By way of analogy, the circumstances that justify this sort of extreme derogation, as provided for in section 9(2)(b), in international law and human rights law include a war, a terrorist emergency or a severe natural disaster.

It is helpful to recognise also that the European Commission on Human Rights accepts that circumstances that justify internal limitation of fundamental rights include the protection of national security. The question however is always one of proportionality.


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