By AVA TURNQUEST
Tribune Chief Reporter
SHANTY town residents have filed a suit against the government over its plan to eradicate “unregulated” communities and have asked the Supreme Court for an injunction to block looming evictions or any form of interference until their case is heard in court.
The writ was filed by Callenders and Co on behalf of 177 shanty town residents from both New Providence and Abaco, and non-profit group Respect Our Homes Ltd.
They are seeking a judicial review of the decisions taken by the government, whom they contend have not established legal right or authority to the land, and as such, are both unlawful and unconstitutional.
Yesterday, human rights attorney Fred Smith said he was prepared to take the case all the way to Privy Council in his bid to protect the rights of his clients, whom he asserts are vulnerable and oppressed.
“Unregulated communities have emerged in the Bahamas over the last 40 years or so,” the lawsuit read.
“They stand on land that is predominantly, or is presumed to be, Crown land. An exhaustive determination of the legal title-holders to the land has not yet been possible, but the government respondents have been acting on the unproven footing that the land is Crown land to which they have an immediate right to possession.”
Prime Minister Dr Hubert Minnis, Minister of Labour Dion Foulkes, Minister of Public Works Desmond Bannister, and Attorney General Carl Bethel are named as respondents in the ex-parte application filed on Tuesday, and obtained by The Tribune.
Bahamas Power and Light and the Water and Sewerage Corporation are included as fifth and sixth respondents for the purpose of obtaining the injunction to block the disconnection of utilities.
The application is seeking a judgment on: the decision to issue notices to residents purportedly in accordance with the Building Regulations Act 1971; the decision to take possession of shanty town land occupied by residents; the decision to disconnect power, water, and other utilities; and the policy to eradicate or irretrievably eliminate shanty towns in the country.
Applicants are also seeking a declaration that each of those decisions were made unlawfully, and as such, are void and illegal; an order quashing each of the decisions; a declaration the notices are void and illegal; a declaration that the policy is unconstitutional and an order quashing the policy; a prohibition order restraining the government from causing the disconnection of utilities; damages and costs.
The applicants have also requested an interim injunction restraining the government from taking possession, interfering with, or demolishing any shanty town structures until the application is considered.
The application also makes a request for the government to provide for discovery of all relevant documents under their control concerning the Crown’s alleged title or interest in the land, and their decision-making as it relates to the policy.
It read: “This application is about the lawfulness of the decisions by which the government respondents are seeking to implement the policy and the constitutionality of the policy itself. In essence, they have presumed a right to take possession of land where no right has been established or lawfully exercised, and they have used unlawful threats to demolish buildings and disconnect utilities as a proxy for taking possession.
“More generally, the policy is unconstitutional because in applying only to the areas the government designated as ‘shanty towns’ it discriminates unlawfully against people of Haitian race and origin.”
The applicants contend their constitutional rights were breached, and set their challenge on five grounds: inhumane or degrading treatment; invasion of home and property; prevention of freedom of movement; unlawful discrimination; and unlawful deprivation of property.
The writ also sets out seven grounds for judicial review. They claim the possession of land and utilities decisions were ultra vires - not supported by any legislative or executive authority - and the government’s notices were unlawful because they were made for extraneous purposes, namely to obtain possession of the land, further government crackdown on undocumented immigrants, and to extend an apparent policy of “breaking up Haitian communities perceived to be ghettoes”.
They also claim the government failed to consider individual circumstances of the occupiers of individual buildings or parts of the land when it made a “blanket decision” to take possession of the land and demolish all buildings.
The application outlined failures to consider: the nature of the right by which residents occupied land, the nature of the building affected, and the effect that eviction would have on them and their families.
It read: “The decision was motivated by the irrelevant consideration of what apparent right the occupiers had to possess the land, as opposed to what right the government had to possession of the land. Further, it is to be inferred that the notices decision and the utilities decision purported to take into account legally irrelevant considerations, namely health and safety concerns, which are not grounds for exercise of the statutory powers relied upon.”
The writ makes a distinction between the notices posted in New Providence shanty towns in June, and a set of two notices disseminated in July. Both notices purported to remind people of the government’s intent to eliminate shanty towns throughout the country.
The writ contends the July notices issued to specific shanty towns were signed by a building control officer, when the Building Regulation Act outlines the minister as the only authorised individual to make such a decision.
It pointed out that the minister was also the only individual with authority to exercise powers to disconnect utilities.
Other grounds for judicial review include: fettering of discretion, in which the applicants claim the decisions are unlawful because the government applied a rigid policy with no exception for the use of discretion; and there was a legitimate expectation the individual applicants would be allowed to stay on the land or would be consulted before being evicted or ordered to demolish buildings.
The application states the expectation stemmed from the permission or encouragement to use the land they have enjoyed for a significant period of time; the country’s obligations under international laws and treaties; and the government’s promise to conduct extensive consultations after the policy was announced earlier this year.
Of the individuals whose names are attached to the case only five percent are not of Haitian descent.
Their full status is as follows:
Citizens - 42 percent
Work permit holders 25 percent (90 percent of these for over 20 years)
Permanent resident - 20 percent
Resident spousal - six percent
Permit to reside - five percent
Bahamian-born pending citizenship - two percent.