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Victory for Nazim Burke against PM Mitchell

Attorney-at-law Rohan Phillip – started the court proceedings

The Court of Appeal has paved the way for a Pakistani national to return to Grenada after delivering a ruling in his favour against Prime Minister and Minister of National Security, Dr. Keith Mitchell.

Former Finance Minister Nazim Burke, an attorney-at-law by profession, was able to argue successfully on behalf of his client, Muhammed Ehsan who was illegally removed from the country after he was accused of being on a terrorist list of a foreign power friendly to Grenada.

The high court had earlier ruled in favour of Ehsan who had married a local woman which qualified him for citizenship.

The Pakistani national filed a constitutional motion to challenge his detention for deportation but Prime Minister Mitchell in his capacity as Minister of National Security and Immigration matters went ahead with the action despite the pending court ruling.

Former Attorney General, Rohan Phillip led the case before the high court but was unable to appear before the Court of Appeal since he had accepted an offer to serve as a judge of the Eastern Caribbean court circuit.

Burke took over the case and did the appeal before three justices who upheld the high court decision.

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

In circumstances where there is an abrogation of the fundamental rights provision of the Constitution, the remedy that is open to the judiciary is either to opine that the limitation is not reasonably justified in a democratic society and exercise its power to achieve a rights-compatible interpretation to ensure that the limitation is justified, or issue a declaration of inconsistent interpretation where a rights–compatible interpretation is impossible. The Parliament can then respond.

Section 9(2)(b) is indeed striking by the fact that Parliament has omitted from the provisions any preconditions, and it does not indicate any exigencies; the safeguards are absent. It is noteworthy that it is usual for those limitations or derogations to have limitations of time (the derogator measures must be temporary); limitations of circumstances (there must be a public emergency threatening the life of the nation) and limitations in effect (the derogating measures must be no more than is strictly required by the exigencies of the situation).

I fail to see how the stark approach taken by Parliament in section 9(2)(b) of the Citizenship Act, without providing even the most minimum of safeguard to the naturalized citizen who is in peril of losing his or her citizenship, could satisfy the test of proportionality. I am of the view that to totally curtail the due process of law was not reasonably required or justifiable in democratic Grenada.

From all that I have foreshadowed it is evident that I am of the view that section 9(2)(b) of the Citizenship Act unlawfully infringes section 8(8) of the Constitution.

In passing, the approach of the House of Lords to the treatment of nationals in contradistinction to non-nationals, in relation to anti-terrorism, is noteworthy.

The presumption of constitutionality is applicable to the appeal at bar. The presumption therefore requires that the court refrains from striking down a statutory provision if it can bring the provision into conformity with the

Constitution by making reasonable adaptations, additions or modifications. This principle is borne out in Greene Browne v The Queen, at page 50E, where it was stated by Lord Hobhouse that the court must identify the element of unconstitutionality in the impugned provision and, having done this, seek to determine whether the provision can be amended, adapted or modified to bring it into conformity with the Constitution without affecting the meaning or purport of the provision.

Applying the above principle, I have no doubt that the offending words are severable from section 9(2)(b) of the Citizenship Act. In accordance with the judge’s findings, I too agree that those words should be struck down and the remainder of the provisions can be saved.

The State quite professionally and properly, accepted that if the Court were to conclude that Mr. Ehsan was unlawfully and unconstitutionally deprived of his citizenship, it would therefore follow that the Deportation Order that was made against him was improperly made, since only an alien could have been deported.

It is quite interesting that even though the State had quite properly acknowledged that once the revocation of Mr. Ehsan’s citizenship by the Minister responsible for Citizenship was unconstitutional, it followed that the Deportation Order cannot be sustained since, quite ingenuously, the Crown, in its written submissions, sought to persuade the Court that Mr. Ehsan was afforded a hearing before his deportation since he had applied to the High Court to stay that Deportation Order.

Moving along, the State posited that since the court had refused to stay the Deportation Order, the deportation was sanctioned by the judiciary. I fail to see how the fact that another judge based on an application for an injunction, refused to stay the Deportation Order can have any relevance to the constitutional claim. In any event, these written arguments were not pursued with any stridency during the oral arguments before this Court and in my view, quite properly so.

On any view of the circumstances, once it has been concluded that the legislative provision which enabled the revocation of Mr. Ehsan’s citizenship was unconstitutional, it follows that the consequential acts thereafter would be unlawful and null.

I can see no prospect of the State persuading this Court that even though the offending words of section 9(2)(b) of the Citizenship Act are unconstitutional and therefore struck down as void, the subsequent acts of the Deportation Order, the arrest and detention of Mr. Ehsan together with the seizure of his passport and his ultimate deportation can be saved from being held to have been unlawful.

This operates despite the fact that the relevant public officials did not behave high-handedly, given that they acted with the belief that they were clothed by the existing law to do the things they did.

The rationale for the approach that is taken in this judgment is self-evident and requires no elucidation. For the reasons which I have foreshadowed it seems that the judge was fully entitled to conclude that the words ‘and in that case subsections (5) and (6) shall not apply’ as appearing in section 9(2)(b) of the Citizenship Act, was unconstitutional.

As indicated earlier and in light of my conclusions on the issue of the constitutionality of section 9(2)(b), it has become unnecessary to consider the issues of the lawfulness of the revocation of Mr. Ehsan’s citizenship, his arrest and detention, the seizure of his passport and/or his deportation in any detail.

Indeed, the answer to the crucial question of the constitutionality of section 9(2)(b) of the Citizenship Act effectively disposes of the second and third issues. The latter issues raise matters which take their life from section 9(2)(b) of the Citizenship Act and in so far as that section has been held to be unconstitutional and violative of section 8(8) of the Constitution, it follows that all of the subsequent acts of the relevant State official will likewise be unlawful.

Having determined that the relevant provision of the Citizenship Act, as I have outlined, infringes section 8(8) of the Constitution in an impermissible way, and is therefore null and void, I also conclude that it breaches Mr. Ehsan’s right to procedural fairness.

Let it be clear that I am not of the view that in all circumstances naturalized citizens who are at risk of losing their citizenship are entitled to any elaborate procedural hearing. This however does not negate the fact that I am of the considered view that a less intrusive manner or a modified hearing should be afforded to naturalized citizens of Grenada. This is so whether or not the question of national security arises. It is apparent therefore that I am in agreement with the judge.

It is evident that I am of the view that the arrest, detention and deportation of Mr. Ehsan were all unlawful, along with the seizure of his passport, due to the fact that their very foundation has been impugned. Consequently, the essential question that must be determined at this juncture is what relief Mr. Ehsan is entitled to for breaches of his constitutional right and for the nominate torts of wrongful arrest and detention together with the seizing of his Pakistani passport.

For the reasons that I have given, the learned judge was fully entitled to come to the conclusions that he did in relation to issues (i), (ii), and (iii) and to make the declarations that he did, which I affirm in their entirety.

Issues (iv) and (v) – Redress
Now that the impugned aspects of the relevant statutory provisions have been struck down as being unconstitutional, this Court has to determine whether the constitutional redress granted by the judge can be sustained or to put another way, what is the appropriate redress that ought to have been granted to Mr. Ehsan pursuant to section 16 of the Constitution, for the breaches of his fundamental rights.

Section 16 of the Constitution stipulates as follows:

“(1) If any person alleges that any of the provisions of sections 2 to 15 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress

(2) The High Court shall have original jurisdiction-

(a) to hear and determine any application made by any person

in pursuance of subsection (1) of this section; and …

Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law”

As alluded to earlier, the next question which arises for this Court to resolve is whether the learned judge erred in awarding the type and quantum of compensation to Mr. Ehsan.

In answering this question, cognisance must be paid to the fact that it is settled law that the court has a wide jurisdiction to provide redress to a litigant whose constitutional rights have been breached. This is in addition to any remedies that are appropriate for any tortious conduct of the wrongful arrest and detention and the improper seizure of Mr. Ehsan’s passport.

It is incontrovertible that once this Court has upheld the learned judge’s decision that Mr. Ehsan’s fundamental right to due process has been breached, he is entitled to redress.

In light of the above, there remains only for the determination of what is the appropriate redress that should have been awarded by the judge for breaches of Mr. Ehsan’s constitutional right.

During oral arguments, the opposing views had been refined. As foreshadowed, two main questions remain for determination by this Court: firstly, whether the judge erred in awarding Mr. Ehsan vindicatory damages; and secondly, whether the amount of damages the judge awarded Mr. Ehsan as compensation is excessive.

It is agreed by both sides that the evidence before the judge which undergirded his award of damages was very scant. In addition, it must be indicated that apart from one affidavit that seemed to have been deposed to by Mr. Ehsan, the other affidavits were deposed to by other persons on his behalf. These were affidavits deposed to by Mr. Haji Asghar who is his former employer which were filed in support of Mr. Ehsan’s constitutional motion and much of which was inadmissible hearsay evidence that should not have been relied upon. More surprisingly, is the fact that, at the very least, the State did not seek to test the veracity of the evidence by way of cross-examination since most of it was clearly hearsay.

Let me say straightaway that Mr. Burke must be commended for acknowledging that the evidence to buttress the claim for damages was very scant and, in some cases, non-existent. The reason for this was obvious. Mr. Ehsan was in custody and, during the material period, was unable to communicate with anyone. Secondly, after his deportation, it seems as though he had not provided the court with any evidence upon which the court could determine the impact, if any, the acts of the State had on him and his family.

Given the personal circumstances of Mr. Ehsan at that time, it is understandable that he may not have been able to depose to any further affidavits in support of his claim for constitutional relief. However, this does not absolve him of the need to provide a proper evidential basis upon which the court could provide the requisite redress. I agree with counsel on both sides that the evidence was markedly lacking.

Much of the State’s criticisms of the judge’s treatment of the evidence are well-founded. Nothing will be gained from repeating them or from further highlighting the poor quality of evidence that was before the judge, which he had to utilise to extrapolate losses suffered by Mr. Ehsan.

Furthermore, I am of the view that quite a bit of the judge’s observations was in the nature of conjecture.

I remind myself that the lynchpin of Mr. Walwyn’s argument is that the learned judge committed an error of principle in awarding vindicatory damages. It is well-established that the judge, in seeking to award compensation, must pay particular regard to the evidence that was adduced. Where the evidence is scant or non-existent to support an award of compensation or damages, the judge is usually able to make a nominal award so as to vindicate the person’s rights.

Most of the criticisms that were made by Mr. Walwyn about the quality of evidence that was adduced on behalf of Mr. Ehsan are well founded. I accept that Mr. Ehsan had over one year to file affidavit evidence in support of his claim for compensation/damages, yet he failed to do so. It is concerning that no attempt was made to explain these very strange turns of events or to justify why Mr. Haji Asghar, his former employer, was the person who deposed to largely speculative and inadmissible evidence on behalf of Mr. Ehsan. From the record it is unclear whether, if at all, he is any way connected to Mr. Ehsan.

By way of observation, it is stark that Mr. Ehsan’s Grenadian wife did not appear to have taken any active part in the proceedings in the court below. The onus was on Mr. Ehsan to provide proof of the losses that he suffered as a consequence of the State’s unlawful conduct. His failure to do so undermines the ability of the court to provide appropriate compensation in relation to any losses based on breaches of his constitutional rights. It must be noted that compensation cannot properly be awarded by the court in a vacuum. There must be a proper evidentiary basis on which the court can fashion appropriate redress.

In my view, and given the totality of circumstances, it is appropriate to award Mr. Ehsan compensation only for the breaches and resultant loss that he has pleaded and proved. I agree with Mr. Walwyn that there was absolutely no evidence before the court below upon which it could have been determined that the State acted highhandedly or with any mala fides towards Mr. Ehsan. Neither was that contended.

Importantly, the judge made no such adverse finding against the State and, in my view, quite properly so. This however is not the crux of the matter. I am not of the considered view that, in the absence of any such finding, it was not open to the judge to award vindicatory damages as urged by Mr. Walwyn. The settled jurisprudence indicates that an award of vindicatory damages, has nothing to do with mala fides or bad motive on the part of State officials.

Further, a close reading of the constitutional motion that was filed by Mr. Ehsan indicates that, in addition to the numerous declarations that he had sought, he specifically claimed ‘damages including vindicatory damages awarded against the State of Grenada for the various breaches of the claimant’s constitutional rights together with interest’. Among those reliefs, he also sought an order that the State of Grenada ought to pay all travelling expenses of the claimant to procure his return from Pakistan to Grenada. Finally, Mr. Ehsan claimed interests pursuant to section 22 of the West Indies Associated States Supreme Court (Grenada) Act.

I must say, the constitutional motion that was filed by Mr. Ehsan is striking by its omission in its pleadings. Mr. Ehsan did not specifically seek to claim damages for the alleged wrongful arrest or wrongful detention or for the seizure and retention of his passport. This may well have been because it was prepared in a hurry. This is however beside the point.

The judge could have made awards, based on the facts pleaded in the constitutional motion and the evidence that was led to support them. In so far as there were no pleaded claims for some matters, it was not open to the judge to conclude that there were those breaches and to make awards in relation to those unspecified breaches.

I agree with Mr. Walwyn that there was no evidential basis upon which the learned judge could have made some of the awards that he did, and that, in any event, they were excessive.

The question of redress is inherently fact-sensitive. It is interesting to note that the former employer is the one who deposed that Mr. Ehsan’s ‘deportation from Grenada had caused considerable hardship to the claimant and his wife and daughter Tennisha Newton who was born on September 20, 2016’.

There was no indication of the source of this information or his belief in the correctness of the information. Of more significance is the fact, as stated earlier, that his Grenadian wife did not appear to provide any evidence to the court to assist with the determination of the appropriate level of compensation. During oral arguments, there was nothing advanced by Mr. Burke in support of any desire of Mr. Ehsan to return to Grenada.

I am not of the view that there was, nor is any basis upon which the learned judge could have properly ordered the government of Grenada to procure an economy class ticket for Mr. Ehsan’s repatriation from Pakistan to Grenada.

There was no admissible and reliable evidence that Mr. Ehsan desired to return to Grenada and Mr. Haji Asghar’s hearsay and inadmissible postulation of this was hardly a good basis upon which the learned judge should have made that award.

In addition, it must be emphasised that the evidence upon which Mr. Ehsan relied, to ground his claim for loss of earnings, is unsatisfactory. It must be pointed out that there was no specific allegation in his constitutional motion of loss of earnings, or any relief sought in relation to that. I am in agreement with Ms. Forrester, in her written submissions, that it was not open to the learned judge to rely on the written submissions of Mr. Ehsan’s then counsel to improperly enlarge his constitutional claim in order to assert other breaches and claims that were not pleaded and to award damages.

It was open to Mr. Ehsan, and he had a very lengthy period of time within which to amend his constitutional motion, to include other claims for breaches and relief but he failed to do so. I am persuaded by Ms. Forrester’s arguments and accept that the learned judge erred in that regard.

Applying these pronouncements to the appeal at bar, and noting that there was no high-handed conduct by the public officials in this case, I would set aside the award $155,000.00 for vindicatory damages made by the learned for the breaches of Mr. Ehsan’s constitutional right, on the basis that the quantum of the award was excessive.

I instead award the following sums for vindicatory damages, in relation to the matters which were pleaded and proven on Mr. Ehsan’s motion:

(i) wrongful arrest detention – $20,000.00;

(ii) retention of Mr. Ehsan’s passport – $10,000.00; and

(iii) breaches of Mr. Ehsan’s right to due process of the law as provided by the Constitution – $20,000.00.

These awards are in addition to the declarations, and in my view, provide emphatic vindication for the breaches of Mr. Ehsan’s constitutional rights.

As foreshadowed, I would also set aside the award made by the learned judge of $25,500.00 for loss of earnings, on the basis that there was no satisfactory evidence upon which the learned judge could have made such an award.

Costs
Mr. Ehsan, having succeeded in prosecuting the constitutional motion and resisting this appeal, is entitled to prescribed costs in the High Court and, on the appeal, two-thirds of the costs in the court below.

Disposition
In view of the totality of circumstances, the appeal is dismissed save and except that the award of $25,500.00 for loss of earnings and of $155,000.00 in vindicatory damages made by the learned judge is set aside and substituted by a total sum of $50,000.00 for the breaches of Mr. Ehsan’s constitutional rights.

The follows orders of the learned judge’s judgment below are affirmed:

(i) 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.

(ii) A Declaration is granted that the revocation of the claimant’s (the respondent on appeal) 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.

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

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

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

Being the successful party on the appeal and having succeeded in prosecuting his case in the High Court, Mr. Ehsan is entitled to prescribed costs in the High Court and two-thirds of the costs in the court below on the appeal.

I gratefully acknowledge the assistance of all learned counsel.

I concur.
Mario Michel
Justice of Appeal

I concur.
Paul Webster
Justice of Appeal [Ag.]

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