Chief Justice halts deportation of detained Haitians

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Chief Justice (Ag) Roxane George, SC

Chief Justice (ag) Roxane George on Thursday evening issued a conservatory order halting the deportation of 26 Haitian nationals who, according to their lawyer Darren Wade, were never charged for any immigration violation.

This publication, however, understands that the foreign nationals were charged for lying to immigration about where they would be staying in Guyana.

Wade contends that the order for deportation issued by Magistrate Sherdel Isaacs-Marcus on Tuesday is arbitrary and in violation of the fundamental rights of the Haitians. Wade has since moved to the High Court challenging the constitutionality of the deportation of the Caricom nationals.

Those in State custody pending deportation are 10 males, nine females, and seven children (two boys and five girls). They have been held since last month at the Hugo Chávez Centre for Rehabilitation and Reintegration, Onverwagt, West Coast Berbice.

President of the Association of Haitian Nationals in Guyana, Kesnel Toussaint, through Wade, has asked the High Court to order the release of his countrymen and women.

The case challenging the constitutionality of the deportation order came up for hearing on Thursday.

During the virtual proceedings, Wade asked the court to grant a conservatory order suspending the deportation of the Haitians pending the hearing and determination of the matter. Wade, in support of his application, inter alia, is relying on the Constitution of Guyana and the Revised Treaty of Chaguaramas (RTC).

The RTC established the Caribbean Community (Caricom) and the Caricom Single Market and Economy (CSME). Wade is asking for aspects of the case which deal with the Haitians’ rights under the RTC to be referred to the Caribbean Court of Justice (CCJ) for adjudication.

In its Original Jurisdiction, the CCJ is an international court with exclusive jurisdiction to interpret and apply the rules set out in the RTC and to decide disputes arising under it. In its Original Jurisdiction, the CCJ is critical to the CSME and all 12 Member States which belong to the CSME (including their citizens, businesses, and Governments) can access the Court’s Original Jurisdiction to protect their rights under the RTC.

Meanwhile, Attorney General and Legal Affairs Minister Anil Nandlall argued that the High Court had no jurisdiction to hear the application.

He submitted that Wade’s application to invoke sections of the fundamental rights provision of the Constitution of Guyana, specifically Article 47, was flawed, since Haitians are not considered Commonwealth citizens under this provision.

Nandlall pointed out that this Article only applies to citizens of Guyana, the Commonwealth, and other countries listed therein. The Attorney General submitted that Haiti was not included among those territories. Referring to the detained Haitians, Nandlall noted, “these persons are aliens under the Constitution [of Guyana]” .

Further, the Attorney General said that Haiti was not included in Caricom free movement under the CSME.

The acting Chief Justice granted the conservatory order suspending the deportation of the Haitians. The parties were granted leave to file affidavits in response, and the court will hear full arguments on December 18, 2020.

According to Wade, the Haitians arrived in Guyana on November 7, 2020, and were granted six months’ stay. Police said that they were arrested in two separate Police operations – in a minibus along the Mabura Trail, Region 10 (Upper Demerara-Berbice), and in a city hotel.