Jitendra Chawla d.b.a Xtra House v Director of Immigration The Attorney General
| Jurisdiction | Belize |
| Judge | Madam Justice Michelle Arana |
| Judgment Date | 29 June 2021 |
| Court | Supreme Court (Belize) |
| Docket Number | CLAIM NO. 640 OF 2019 |
IN THE SUPREME COURT OF BELIZE, A.D. 2019
The Honorable Madam Justice Michelle Arana
CLAIM NO. 640 OF 2019
Godfrey Smith S.C. along with Hector Guerra of Marine Parade Chambers for the Claimant
Agassi Finnegan Crown Counsel in the Attorney General's Ministry for the Defendants
This is an Application by the Claimant for damages and other relief due to Constitutional Breaches alleged against the Defendants. The Claimant, Jitendra Chawla, is a businessman who employed 2 Indian Nationals, X and Y at one of his businesses. It is alleged that X and Y stole a large amount of money and a vehicle from the Claimant, and absconded to Mexico with the stolen items. X and Y were then arrested in Mexico and returned to Belize and the Claimant lodged a criminal complaint against them. Instead of prosecuting X and Y for the crime of theft, the Government of Belize through the Immigration Department repatriated X and Y to India on the ground that they had been victim of human trafficking by the Claimant. Mr. Chawla now seeks relief through this constitutional action seeking declarations and damages for breach of his constitutional rights to protection of law. By consent of the parties, the court now proceeds to determine this matter on the basis of written submissions.
Did the state breach the Claimant's constitutional rights under Section 6 of the Constitution to equal protection under the law by repatriating X and Y before the Claimant was able to bring an action against them for the stolen property? If so, is the Claimant entitled to the declarations and damages sought, including vindicatory damages?
This claim challenges the lawfulness of specific actions and omissions by the Defendants which left the Claimant without any legal recourse in the courts of Belize. The Claimant says that two of his employees (“the suspects”) absconded across the border into Mexico with his private property — cash and a car — for which he then filed a criminal complaint. The suspects were apprehended, returned to Belize and, one year later, repatriated by the Defendants to India on the ground that they were alleged victims of human trafficking by the Claimant.
The Claimant was never informed of any specific allegations against him, never given any opportunity to say anything whatsoever in his defence and never informed of any hearing or decision. He was deprived of his property and denied both his right:
His contention is that such actions by the state were fundamentally unfair and an arbitrary abuse of state power in breach of his right to equal protection of the law.
-
(a) to recover the loss of his property in a civil court; and
-
(b) to have his criminal complaints investigated and prosecuted.
This claim rests squarely on the section 6 guarantee of equal protection of law under the Belize Constitution (the “Constitution”). This right — as interpreted by the Caribbean Court of Justice (‘CCJ’), regional courts and the international human rights system — is evolutive, broad and all-encompassing of natural justice, fundamental fairness and protection from abuse of state power.
The claimant's fundamental proposition of law is that his right to equal protection of the law was violated by the irrational, unfair and arbitrary repatriation of the suspects in total disregard for his right to obtain an effective remedy for the unlawful deprivation of his property through legal processes in Belize.
In September 2017, the Claimant lodged a criminal complaint against Keyur Barot, an employee of the Claimant and Jitendra Kumar a past employee of the Claimant (“the employees” or “suspects”), for the theft of his grey Chevy Equinox and monies they had collected on his behalf as proceeds of sales. On or about 23 rd September 2017, following a collaborative effort among the Belize Police Department, Mexican law enforcement officials and the Belize diplomatic mission in Mexico City, the employees were discovered and apprehended in Monterey Mexico with approximately BZ $26,000.00 or USD $13,000.00.
On or about 1 st October 2017, the employees were returned to Belize by Mexican officials to face criminal charges in Belize for the offence of theft. However, upon their return, the Claimant was informed that the employees had been put into protective custody pending the results of a trafficking in persons investigation in which they were allegedly the victims, and the claimant the perpetrator.
For a period of over ten months, the suspects were kept in protective custody. During this time, the Claimant repeatedly made inquiries of the Belize Police Department as to when they would be charged with theft but was informed that the department of immigration was looking into the allegations of human trafficking.
The Claimant was not informed of the specific allegations made against him. As deposed in paragraph 16 of his Affidavit, persons from the Anti-Trafficking in Persons Council asked him general questions about the working and living conditions of one of the employees, Barot. The claimant answered all the questions and fully complied with their requests.
Then, on or about the 28 th August 2018, without the Claimant's knowledge, and with the direct assistance of the Defendants, the employees were escorted to the Phillip Goldson International Airport where they boarded Copa Flight Number 281 to Panama with final destination to India: paragraph 14 of the First Affidavit of Jitendra Chawla.
To date, no criminal charges have been laid against either the Claimant or the suspects. According to paragraph 15 of the First Affidavit of Briana Williams, the criminal investigation against the claimant is still ongoing.
As previewed above, the Claimant contends that the First Defendant's repatriation of the suspects was arbitrary, unreasonable and in flagrant breach of his right to the protection of the law in that:
-
(1) His right to access the courts for the recovery of property unlawfully taken by his employees was frustrated, thereby denying him any effective relief for the unlawful deprivation of his property; and
-
(2) The repatriation arbitrarily, irrationally and unreasonably interfered with and obstructed the Claimant's outstanding criminal complaint to the Police Department against the employees for the theft of the Claimant's grey Chevy Equinox and the sum of $62,357.00, leaving the criminal complaint unresolved and the imputation that he is a human trafficker.
The Defendants resist the claim arguing that the Claimant's constitutional right to protection of the law was not breached because:
-
i. The Supreme Court ( Civil Procedure) Rules 2005 (“CPR”) allows for service outside of the jurisdiction so that the Claimant's access to the courts was not denied; and
-
ii. Section 27 of the Trafficking in Person ( Prohibition) Act 2013 1 (“the Act”) precludes the state from laying any charges against the suspects.
The state's defence rests on two arguments: one procedural, the other substantive. Firstly, the state says nothing prevented the Claimant from applying for service of the claim outside of the jurisdiction under the CPR. As will be demonstrated in full below, this argument is ineffective against the constitutionally protected principle that equal protection of law requires not only access to the court but also effectiveness of remedy which cannot now be obtained by the Claimant with the suspects in India.
The substantive argument is equally inadequate. It contends that the suspects were not charged because s. 27 of the Act prohibits the laying of criminal charges against victims of human trafficking. This defence is unavailable. There was no legally cognizable process under which the suspects were found to be victims of human trafficking. Somebody, somewhere in some state office, deemed them to be victims without any recognition of the claimant's right — as the alleged trafficker, and also victim of theft — to equal protection of law.
The insufficiency of the defence will be demonstrated below, after a brief word on the supremacy of the Constitution, the paramouncy of human rights and the approach to constitutional adjudication.
It is trite law that the Constitution reigns supreme over all other laws. Section 2 expressly entrenches the principle of Constitutional supremacy into Belize's legal system so that laws which conflict with the Constitution are rendered null and void to the extent of their inconsistency.
Also entrenched in the Constitution are the protection and enforcement of fundamental rights and freedoms, rendering any law which is inconsistent with these fundamental rights and freedoms null and void.
Thus, both the doctrine of Constitutional supremacy and the protection of fundamental rights and freedoms constitute foundational precepts of Belize's constitutional framework.
Fundamental rights and freedoms are especially protected. The deference to and the significance of fundamental rights and freedoms are reflected from the onset in the Preamble of the Constitution:
“Whereas the people of Belize
(a) affirm that the Nation of Belize shall be founded upon principles which acknowledge the supremacy of God, faith in human rights and fundamental freedoms, the position of the family in a society of free men and free institutions, the dignity of the human person and the equal and inalienable rights with which all members of the human family are...
To continue reading
Request your trial