Smith says government powers not unfettered, fate of shantytown land in Abaco sub judice
NASSAU, BAHAMAS- Attorney Fred Smith, QC, accused Prime Minister Dr Hubert Minnis of heeding to the cries of “the lynch mob” in a letter formally putting the government on notice that its executive power was not unfettered.
Smith urged the government to respect the rule of law, and further outlined limitations to government powers as it related to its prohibition to build order, and intent to compulsorily acquire the Shanty Town land in Abaco.
“Our clients do not wish to escalate this litigation or launch any further,” Smith wrote.
“The Prime Minister has repeatedly proclaimed and boasted that the Bahamas is a land of laws and such laws should be respected.
“We remind the Prime Minister and his executives in cabinet that the law is not a one-way street.”
The outspoken QC represents 177 shantytown residents in their judicial review action of the government’s decision to eradicate shantytowns throughout the country, particularly Nassau and Abaco.
He claims the prohibition order tabled in parliament last week is “void, illegal and of no effect” due to zoning laws.
Noting the order only extended to shantytown land and not all land devastated by Dorian, Smith said the government’s actions were clearly “rank, transparent, inhuman and degrading discrimination”, and unlawful under the constitution.
“We note with extreme concern the continued link that this government seeks to make between so-called “illegal” migration and the occupation of the shanty towns in large part by those of Haitian ethnic origin,” Smith wrote.
“It would appear that that decision to make the Order has been infected by such improper purposes because we note that the Order purports to extend only to shanty town land and not all land that was devastated by Hurricane Dorian.”
Smith explained the Planning and Subdivision Act 2010 mandates all orders are made in conformity with a land use plan, adding none existed for Abaco.
He said the purposes of the act do not extend to anything relevant or connected to controlling or dealing with perceived “illegal” immigration to the Bahamas.
Smith furthered the Director of Physical Planning has had nine years since the amendments were passed to engage in consultations to develop a plan for Abaco, but failed to do so.
As for Minnis’ intent to compulsorily acquire shantytown land in Abaco, Smith said the legal mechanism is only engaged when land is needed for a public purpose.
“The marketplace has been rabid with violent, racist, xenophobic, discriminatory, hateful diatribes and invective against the poor victims of hurricane Dorian in the shanty towns in Abaco,” the letter read.
“It is distressing that the Prime Minister of the Bahamas heeds the cry of the lynch mob instead of rising above the fray demonstrating respect for the rule of law and compassion for fellow Christians that have just suffered a terrible disaster, and we respectfully encourage the Prime Minister to desist from further inflaming the fuels of violence in so many forms against our clients.”
Smith noted any acquisition was subject to the right of appeal, adding his clients’ rights in relation to any decision affecting their interests are reserved.
He said his clients expected full disclosure of the government’s decision-making process in any court application.
The Nassau Guardian reported on Monday that Minnis kicked down the back door of a structure in the Sand Banks shanty town in Treasure Cay, Abaco during a brief walk through of the community last week.
In his letter, Smith called on the government to respect the existing Supreme Court injunction blocking officials from taking possession or demolishing shantytowns in New Providence and Abaco.
Last August, Supreme Court Justice Cheryl Grant-Thompson ordered the government and utility providers to halt any planned service disconnections or evictions in shanty towns pending the judicial review.
The government was granted a variation of the order on March 14, which states residents and occupiers of shanty town land throughout the country “shall take no action to construct, erect and or alter any further buildings or structures otherwise than in accordance with the Buildings Regulation Act”.
In his letter, Smith stressed the deadly Category 5 storm has not “magically swept away” the rights of residents and ongoing litigation.
The letter was directed to government attorneys Loren Klein and Kayla Green-Smith on Monday.
“The injunction covers all shanty town land in New Providence as well as such land on Abaco as is occupied by specific applicants who are residents of shanty towns in Abaco,” Smith wrote.
“We stress that recent events do not change the terms of the injunction, which remains in full force and effect unless and until varied by the court.
“Hurricane Dorian has not magically swept away their rights, as are being determined by this action. Our clients continue to enjoy the same rights post-Dorian as they did pre-Dorian.
Smith continued: “Nor can the injunction be overridden or side-stepped by the use of other executive powers, which are alarmingly being vocally expressed, in very draconian and terrifying terms, to our clients, by the Executive.
“The use of such powers for that purpose would be improper. The injunction must be obeyed.”