By ALICIA WALLACE
Following the holiday weekend the country is abuzz with news of the injunction granted by Supreme Court Justice Cheryl Grant-Thompson. The injunction pauses utility disconnections and evictions by the government until there is a judicial review of the government’s plan to bulldoze shanty towns.
The leave for judicial review was filed on behalf of 177 residents and families — increased from 50 in July — in New Providence and Abaco shanty towns and Respect Our Homes Ltd and granted last Friday.
There has been talk about the deadline which was “extended” from July 31 to August 10, many people suggesting the government granted this reprieve to give human rights lawyer Fred Smith time to file for an injunction. In their minds, the government does not want to get rid of the shanty towns, is doing this for show and wants Smith to win. According to Smith, however, Head of the Shanty Town Action Task Force Dion Foulkes found the notices issued in June to be invalid. This led to a notice being issued on July 9, allowing 30 days for residents to vacate before the structures would be bulldozed. The 30-day period would have ended on August 10. It was not truly an extension, but the correction of an error. The pending judicial review is in reference to the July 9 notice.
Role of the court
People have been asking what Grant-Thompson was thinking when she granted the injunction? It has been said she should have looked at what the government is trying to do as positive and beneficial to Bahamians, and that should have led her to a different decision. This commentary shows we do not truly understand the way our government functions or the importance of separation of power.
The judiciary, executive and legislature all perform different functions. The law is the great equaliser and that cannot be true if the judiciary favours or takes instruction from the executive or the legislature.
“The Supreme Court has the constitutional responsibility to protect human rights and it is the one institution which is independent of the executive and the legislative,” Fred Smith said. He added we are fortunate, as a small country, to enjoy an independent judiciary that is not intimated by the government.
It is just as important to have a judiciary that is not intimidated by the Bahamian people. Many Bahamians are angered by the injunction and do not care about the legality of it nor the government action it impedes. They want the shanty towns gone, by any means necessary. There is little concern about the housing needs of the people who would be displaced. The court, however, must concern itself with the law and how it is or is not being followed. When this case goes to trial, a judge will review evidence from both sides in order to determine whether or not the notice issued on July 9 is legal.
The government will try to justify what it is doing and prove it to be legally correct. It is a case, not only of procedure, but also of human rights and possible ethnic cleansing. The trial will ask whether or not the notices sent by the government are legal, but it will also question the legality of what has been called an “eradication policy”. Fred Smith will argue it is contrary to Article 26 of the constitution on anti-discrimination as it targets communities comprised of “95 percent Haitian ethnic origin”.
How we really feel
In a social media post, Stephen Aranha, doctoral student and former Chair of the School of Social Sciences at then College of The Bahamas, said: “The public disappointment that an injunction stops us from destroying the lives of fellow human beings is palpable.”
We often behave as though there are only two types of people in The Bahamas — Haitians and none Haitians. We may concern ourselves more with identifying and creating separations from those of Haitian descent than we do with identifying and celebrating people and things Bahamian. We concern ourselves with ownership and exclusivity more than what is legally correct. “By any means necessary” has been used over and over again in reference to the eradication of shanty towns. Listening to the rhetoric, it is easy to forget the residents will not simply disappear if their homes are destroyed.
Is it crown land?
The Tribune recently reported the government’s audit of the Lands and Surveys Department would not be available until December 2018 and this has led to ROHL refusing to accept that all of the land in question is Crown land. It also remains to be seen whether or not the Crown still holds the title and right to retain it since after 30 years of occupation, residents can claim ownership.
In a brief conversation, I asked Fred Smith about the ownership status of the land and the process the government has undergone. He pointed out the government has not gone to court to ask for an eviction. This would be the most direct course of action by a land owner. Instead, the government is using building, sanitation and health regulations to force residents out of the shanty towns. It may be a shortcut, knowing the timeline for the audit is outside of the government’s shanty town eradication plan. It could also be the long way around because there is no direct route. We probably will not know for sure before the end of the year.
Opinions and law
We all have opinions on immigration practices and policy. They can be informed by many factors, from personal experience to direct study and can make for long, intense discussions. The productivity of those discussions depends heavily on our willingness to explain our positions, admit our biases and truly listen to what others are saying. The place for this is almost anywhere. These opinions, however, do not belong in court. We cannot expect our opinions to magically become court rulings.
The law is the law. There are historical conventions that come into play. It is open to interpretation, but based on the fundamental principles of objectivity. There are, of course, liberal and conservative leaning judges and this is a factor in court decisions. It is a reflection of society, but without being held hostage by society or popular opinion.
The court may be vilified for protecting people’s lives and the right to fight for their rights, but it is functioning as it should. The decision does not mean the shanty towns will not be destroyed, but that the government will not be allowed to act before it is decided its plan is legal. Whether we realize it or not, we are fortunate to have seen this decision — not only unpopular, but infuriating to many.
The law — not public opinion on the humanity of others and the rights we believe they should or should not have — will be the final word.