By RASHAD ROLLE
Tribune Senior Reporter
rrolle@tribunemedia.net
THE Supreme Court has denied a judicial review application that seeks to challenge the competent authority’s Emergency Powers Orders, with Justice Indra Charles ruling that a constitutional motion would be the appropriate route for the applicant to take, not a judicial review.
Dwight Armbrister, owner of D’Waters Cafe at Arawak Cay, alleged that he was adversely affected by the Emergency Powers Orders of July 27, 2020 and August 4, 2020.
According to Justice Charles’ ruling, Mr Armbrister alleged that the competent authority’s decisions “were not reasonably justified in accordance with Article 29(2) of the constitution; were ultra vires Article 29(2) of the constitution; were not reasonably required to meet the legislative outcome; were not rationally connected to the purpose of enacting the orders; and had the effect of limiting certain fundamental rights under the constitution with no reasonable relation between the objective which is being sought to be achieved by the emergency order.”
Justice Charles said “courts have determined that judicial review applications which are substantially constitutional matters ought to be refused.”
Franklyn Williams, the lawyer for the government, argued that the grounds for the judicial review challenges the constitutionality of the emergency orders even if the breach of a specific right was not alleged.
He also argued that Mr Armbrister failed to pursue an alternative remedy provided by Article 28 of the constitution.
Justice Charles wrote: “Mr (Nicholas) Mitchell, appearing as counsel for the applicant, submitted that the enactment of the pandemic and lockdown orders were not reasonably justifiable because: (i) they were ultra vires the power vested in the competent authority under the constitution, (ii) they were not reasonably required to meet the legislative outcome, and (iii) there was no rational connection between the orders and the purposes for which they were implemented. The orders, Mr Mitchell, minimally impair the constitutional rights and freedoms of business owners at Arawak Cay.”
Ultimately, Justice Charles agreed with Mr Williams.
“What Mr Mitchell has skillfully done is to rephrase what are, at their core, allegations of breaches of constitutional rights,” she wrote. “Despite that clever approach, at the end of the day, the applicants’ complaints are grounded in Article 29 of the constitution.”
Justice Charles did not order costs in the case, noting courts should be hesitant to do so when judicial review is sought in good faith.
Attorney Nicholas Mitchell appeared for Mr Armbrister.
Comments
JokeyJack 3 years ago
Dwight Armbrister must be an ordinary struggling Bahamian small businessman. May the blessings of God descend upon him.
Sign in to comment
Or login with:
OpenID