The Tribune

By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

ATTORNEY Fred Smith said the Supreme Court must now decide whether the government can lawfully target and destroy all communities of Haitian ethnic origins in the country.

His comment came as lawyers delivered their closing arguments yesterday in the closely watched shanty town hearing. Justice Cheryl Grant-Thompson is presiding over the case.

“The court must decide whether or not the respondents can lawfully target all communities in The Bahamas which are of Haitian ethnic origins and destroy them with the stated purpose of assimilating all those persons in those communities into the mainstream of Bahamian culture,” Mr Smith said.

“We submit that the respondents have produced no law which permits the government to socially, economically, politically destroy ethnically different communities and wipe them off the face of The Bahamas.

“More importantly, the respondents cannot illegally and unconstitutionally use laws such as the Building Regulations Act to achieve an illegal and unconstitutional purpose. They cannot behave in a wholesale manner towards these persons and these communities.

“A legitimate, lawful and proper purpose must be the foundation to any decision taken in respect to each individual person and/or home in each community.”

Justice Grant-Thompson recently banned the government from demolishing more shanty town structures on Abaco. She extended her standing injunction that prohibits the government from evicting shanty town residents and disconnecting services to their communities to all unregulated communities on the island. Attorney General Carl Bethel has said lawyers will appeal her interlocutory judgement.

Mr Smith said ultimately, the questions before the court are simple.

“If the appropriate authority wishes to take an administrative action, or to apply and enforce a particular law, it must do so selectively, it must do so individually and only for the purposes of the relevant legislation,” he said.

“This is not a case about whether or not the Minister of Works can or cannot exercise his statutory powers for the purposes of the Building Regulations Act. What he cannot do, we submit, is to use the pretext of the Building Regulations Act or any other law to achieve an ulterior purpose or to pursue an ulterior motive.

“Our entire body of law is premised on a decision maker applying his or her mind to the particular facts and circumstances of each individual case and making an administrative decision.

“And in such circumstances, taking into account only relevant facts, relevant matters and not taking into account irrelevant facts or matters. It is an individual process.”

Mr Smith said even if regulators examined each case individually, their response to violators must be proportionate to be constitutional. He said the proportionate action of regulators would be to work with homeowners and take a “reasonable and rational measure as might have been appropriate to address the concerns by the regulators of perhaps some building code requirement not having been met or some sanitation issue or some safety issue and the BRA provides for that.”

He also said: “The BRA provides that, for the minister, instead of demolishing may take such other action that might be deemed appropriate to regularise and bring a property into compliance. It’s not one size fits all. Everybody’s home doesn’t have to be destroyed.”