Arawak Cay vendor seeking judicial review on “discriminatory” emergency orders

Arawak Cay vendor seeking judicial review on “discriminatory” emergency orders

NASSAU, BAHAMAS — The Supreme Court will determine whether to grant the owner of an Arawak Cay restaurant leave to apply for judicial review of the emergency orders and its impact on the business.

The application was filed by CML Chambers on August 14 on behalf of Dwight Armbrister, the owner of D’Waters Cafe.

Attorney Nicholas Mitchell represents the applicant.

Counsel for the Crown and the applicant appeared before Supreme Court Justice Indra Charles on Monday.

Counsel for the Crown argues that the application should not proceed with judicial review as it would be more suitable for constitutional motion.

The basis on the application for judicial review was the competent authority’s decision to impose emergency orders that were “discriminatory” and ultra vires to the constitution.

Prime Minister Dr Hubert Minnis, the competent authority, and Attorney General Carl Bethel are named as first and second respondents, respectively.

The application challenges the Emergency Powers (COVID19 Pandemic) (Lockdown Order) dated July 27 and the Emergency Emergency Powers (COVID19 Pandemic Lockdown) (No 3) Order,  on the grounds of proportionality, ultra-vires, and or because there is no reasonable justification that satisfies Article 29 (2) of the constitution.

The application is seeking leave to judicially review the prime minister’s decision to impose such provisions or conditions under the pandemic and lockdown orders that are “wholly unreasonable and unjustifiable in the circumstances of this period of emergency”.

It furthers that the decision taken by the competent authority had the effect of limiting certain fundamental rights under the constitution with no reasonable relation between the objective sought to be achieved by the emergency orders.

The grounds for review also puts forth that the emergency orders contain measures that are discriminatory and irrationally connected to the legislative objective and the means used under the orders are more than what is necessary to accomplish the objective.

Additionally, the application indicates that the specific measures taken by the competent authority are unfair and arbitrary.

The applicant is seeking a declaration that the competent authority must comply with the provisions of Article 29 (2) of the constitution in so far that his actions are reasonably justified, and a declaration that he acted ultra-vires to the powers set out in Article 29 by making proclamations of emergency on or about June 29 which were not reasonably justifiable in the circumstances.

The applicant is also seeking a declaration that the competent authority acted against the majority public interest and economic interests of The Bahamas, and alternatively, with reckless indifference in declaring further emergency orders after June 29.

Additional relief being sought by the applicant include court orders quashing the government’s emergency orders.

The applicant is seeking an order of Mandamus restraining the competent authority from shutting down the economy for a further period following the expiry of the current proclamation of emergency and emergency orders.

An order is being sought to quash the emergency order dated June 29 and restoring to status quo at law to that which was in effect and that status be refrained until new orders may be produced.

An order is also being sought to quash the Emergency Powers (COVID19 Pandemic Lockdown) Order, 2020, and in the alternative quashing certain clauses contained in the order and substituting them with terms that are reasonably justified, and proportionate to the interests of the majority.

The applicant is further seeking interlocutory relief for an order allowing the status quo, prior to the June 29 proclamation of emergency, to take effect until the determination of the substantive matter by the court.

No order as to costs are being sought.

Similar action has been filed against the government with some 23 attorneys across firms and political parties participating in a class-action suit over the state of emergency and emergency orders.

On August 12th, Munroe and Associates filed a writ on behalf of 21 people – some of whom are business owners impacted by the orders and others who were charged and convicted for breaking the orders – submitting that the orders are unconstitutional.

About Sloan Smith

Sloan Smith is a senior digital reporter at Eyewitness News, covering a diverse range of beats, from politics and crime to environment and human interest. In 2018, Sloan received a nomination for the “Leslie Higgs Feature Writer of The Year Award” from The Bahamas Press Club for her work with Eyewitness News.