Darline Pratt, Jean Rony Jean-Charles’ cousin, and his sister, Clotilde, outside court yesterday.
UPDATE: FOREIGN Affairs Minister Darren Henfield has confirmed the government is preparing a travel letter for Bahamas-born deportee Jean Rony Jean-Charles today - See story HERE.
By NICO SCAVELLA
Tribune Staff Reporter
nscavella@tribunemedia.net
A SUPREME Court judge has ordered the government to “immediately” issue a travel document for Bahamas-born deportee Jean Rony Jean-Charles to allow him to return from Haiti to the Bahamas at the government’s expense and to grant him legal status no later than 60 days after his return.
Justice Gregory Hilton, in a written ruling, ordered the government to issue a travel document to Mr Jean-Charles to “allow and permit” him to travel from Haiti into the Bahamas, and that it pay the “reasonable cost” of Mr Jean-Charles’ journey “forthwith upon his return.”
Justice Hilton further ordered that the minister and director of immigration should, no later than 60 days after Mr Jean-Charles’ return and upon his application, issue “such status” that would “permit him to remain in the Bahamas and to legally seek gainful employment.”
And, ordering that Mr Jean-Charles’ rights under Article 19(1), (2) and (3) and Article 25 (1) of the Constitution have been breached, Justice Hilton ordered the government to pay Mr Jean-Charles for the breach “in such amount as to be determined” after hearing submissions by counsel.
Justice Hilton, in his 39-page ruling, found that Mr Jean-Charles was “unlawfully expelled” from the Bahamas, after having been unlawfully detained from September 17, 2017 to November 24, 2017, in breach of his right guaranteed under Article 25 (1) of the Constitution.
Justice Hilton further found Mr Jean-Charles has been deprived of his personal liberty, unlawfully arrested and detained/falsely imprisoned in breach of his rights guaranteed him under the Constitution.
The Tribune understands the Crown intends to appeal Justice Hilton’s decision.
According to the ruling, which referred to an affidavit sworn by Mr Jean-Charles’ sister Clotilde Jean Charles, Mr Jean-Charles was born at the Princess Margaret Hospital in New Providence on December 5, 1982. He was arrested by immigration officers last September and detained at the Carmichael Road Detention Centre from that date up to the swearing of Ms Jean Charles’ affidavit.
Mr Jean-Charles was never charged with any offence under the Immigration Act or any other law, according to the ruling, and neither was he ever taken before any court. He was never served with a deportation or a detention order, and had never been outside of the Bahamas.
He is represented by Fred Smith, QC, who filed a writ of habeas corpus on his behalf last year.
The government’s response to Mr Smith’s writ, executed by the then-Acting Director of Immigration Keturah Ferguson, accepted the facts outlined in Ms Jean Charles’ affidavit save for the name and date of birth of the person in question.
According to the response, on September 18, 2017 an adult Haitian national who gave his name as “Jean Charles” and stated his date of birth as December 1, 1985, was arrested and detained by immigration officers during a routine status check on Fire Trail Road.
Due to “Jean Charles” being unable to provide officials with any documents or proof concerning his lawful presence in the Bahamas, he was taken to the detention centre for further processing relative to suspected contravention of the Immigration Act.
After an unsuccessful check at the Birth Registry for the name “Jean Charles” and the associated date of birth, that individual was returned to his home country on a Bahamasair charter flight on November 24, 2017. He later confirmed his identity as “Jean Charles,” date of birth December 1, 1985 during a roll call of passengers prior to boarding.
Once the flight landed in Haiti, the man was handed over to Haitian authorities, and thus any custody or control of “Jean Charles” by the Bahamas government came to an end on November 24, 2017, the Crown maintained.
Days later on November 29, Mr Smith filed an originating motion, an ex parte summons and affidavit seeking leave of the court for a writ of habeas corpus to be issued against the government for it to produce Mr Jean-Charles, specify whether the cause of his detention was lawful, and if not to order his release.
In addressing Mr Jean-Charles’ arrest and detention, Justice Hilton noted that while Article 19 of the Constitution recognises the power of the state to detain and expel non-nationals, it must be done “within the four corners of the law”. He further stated any detention not authorised by law would be a “breach of the individual’s constitutional rights; and entitles that person to compensation under Articles 19 (4).”
He also said that based on section 18 of the Criminal Procedure Code, if an individual is apprehended by immigration officers for allegedly committing an offence, that individual cannot be detained for more than 48 hours before being charged and taken before a magistrate.
“Any time longer is an unauthorised detention and is unlawful,” Justice Hilton added.
Regarding Mr Jean-Charles’ consequent deportation and/or expulsion from the country, Justice Hilton stated that he could not be arrested and detained under section 25 of the Immigration Act, which, along with section 41, outlines the “only powers of detention” contained in the Immigration Act.
Section 25 deals with the process in which people who are refused leave to land can be removed from the Bahamas, while section 41 deals with the process in which a person subject to a deportation order may be removed from the Bahamas, which may include the detention of that potential deportee.
However, Justice Hilton said as Mr Jean-Charles was never refused leave to land in the Bahamas due to him being born in the country, and as no deportation order was made against him, he could not be arrested and detained under section 25 and similarly, could not be detained and deported under section 41.
Justice Hilton also questioned the validity of the only document connected to Mr Jean-Charles’ removal from the Bahamas, namely the return executed by Ms Ferguson.
“It is unclear on what basis this document was prepared and executed as there is no law of which I am aware which lawfully allows the director of immigration to authorise the removal, surrender, deportation of expulsion of a person from the Bahamas to another country,” he said.
Justice Hilton further stated that the uncertainty surrounding whether Mr Jean-Charles had “legal or non-legal status” or anyone facing similar position “cannot be a basis for his detention and deportation” under section 40 (1) (a) of the Immigration Act.
“I find that the Applicant has been deprived of his personal liberty, unlawfully arrested and detained/falsely imprisoned in breach of his rights guaranteed under Article 19 (1), (2) and (3) of the Constitution,” he said.
“I also find that the applicant has been unlawfully expelled from the Bahamas in breach of his right guaranteed under Article 25 (1) of the Constitution.”
After the ruling, a jubilant Mr Smith said: “I am very happy that the judge has ruled in Jean Rony’s favour. I am pleased that the judge has reviewed the constitutional provisions and that by this judgment he is giving muscle to the skeleton and structural foundation of the Constitution.
“Article 28 of the Constitution is a very powerful remedy, and I am very happy that the Supreme Court judges are starting to use Article 28 to promote and protect people’s fundamental rights under the constitution.”
Jean Rony’s sister Ms Jean Charles, when interviewed, said she felt “great, wonderful, thrilled” and “marvelous” after hearing Justice Hilton’s ruling.
“I feel good because he’s coming back home,” she added.
Comments
My2centz 6 years, 9 months ago
So a 35 year old high school graduate does not know his legal name or date of birth? No red flags, here?
Also, article 19(1) (g) excludes Jean Rony, a non citizen without legal status, from the protections of article 19(1). The only issue here is he was not detained for the purpose of being taken to court. Therefore, (2) and (3) are valid. Article 25 also does not apply to illegals because it prevents expulsion from the Bahamas. If this ruling is followed it means all expelled illegals can legally return to the Bahamas and cannot be expelled. The solution here is to correct the law. Why is that so difficult? Turn the boats around when they are caught in Bahamian waters and use those resources to take each and every suspected illegal to court.
TalRussell 6 years, 9 months ago
Ma Comrades, "King's Counsel" Freddy proved there is no rule preventing the most ordinary among us from successfully suing this Imperial red shirts state. Justice Gregory has so ordered that Jean Rony, deserves his rights be protected and compensated equally to that of a wealthy Bay Street prince of a man's. Now, it's time open vault door public purse to pay Jean Rony his $l million King's Ransom.
Amen to Justice, delivered and seen for the ordinary man's!
licks2 6 years, 9 months ago
We have a national issue here and you still talking political nonsense. THIS ONE IS GOING ALL THE WAY TO THE PC. . .BY THE TIME THIS REACH THE PC. . .THE POINT IN LAW WILL BE IF BIRTH IS LEGAL RIGHT OF CITIZENSHIP IN THE BAHAMAS!!
TalRussell 6 years, 9 months ago
Ma Comrade, I seriously doubt its the job learned members Privy Council to be answering questions of whether our existing immigration law is a good law or not? Shouldn't the Imperial red state's law makers, first get their own immigration act in order and not waste time Privy Council?
bogart 6 years, 9 months ago
We need to hear from the Haitian Goverment. They are a Sovereign nation also eith Constitution, laws, rules amd regulations and have allowed persons to enter/reenter/exit or set foot on their sovereign soil.
licks2 6 years, 9 months ago
This case will be appealed and over turned. . .this judge ruling was based on the assumption that Mr. Charles was "legal" and had some remaining status. . .this will be argued and knock down. . .this one is going to the PC!! All this will result in now is that until they change the law to correct these "activist" ruling by the judge. . .PLENTY POOR ILLEGALS WILL NOW BE GOING TO PRISON. . .WORK PERMITS WILL BE DENIED EN-MASSES. . .EMPLOYERS GIVING WORK TO THEM ARE IN THE GUN SIGHTS. . .RENTING TO THEM WILL RESULT IN MANY OF THEM LIVING IN THE STREETS! We should thank Mr. Smith once and for all. . .the question of citizenship by birth will be put to a legal test!!
jamaicaproud 6 years, 9 months ago
Let jamaicaproud tel you something. Thsi ruling as based on the rule of law. The strength of the great constitution of Bahamaland. As for the Privy Council, you all better leave that one alone and just let Jean it. If this goes to a higher court. The whole constitution of Bahamaland will be ripped apart. The privy council will rule all natural born are citizens as is the case in most countries. I am sure Bahamaland doesn't want that.
My2centz 6 years, 9 months ago
There you go with your usual drivel. Did you bother to read the Bahamas' constitution? Most countries do not have birthright citizenship. And whether or not it does, has no bearing on the citizenship matters for the Bahamas.
thephoenix562 6 years, 9 months ago
I totally agree.
jamaicaproud 6 years, 9 months ago
Wassup 2cents. I am not giving my opinion either way. I am just saying rulings in final court of appeal usually become precedent. So its better to let this one case slide. If the PC gets involvED IT WILL MAKE majoRITY rule seem like a waste of time.
licks2 6 years, 9 months ago
I see you don't know what you are talking about. . .you really need to go and read that document. . . NO UN ACCORDS CAN MOVE ANY CONSTITUTIONAL LAW FROM ANY NATION! That's an established fact in international law. . .that's why we have the citizenship question to deal with today. . .our constitution does not give female right to citizenship. . .contrary to international accord (CEDAW) of which we are signatory. . .but our constitution prohibits! The government under pressure by the UN. . .have to find a way around that constitutional prohibition!
DEDDIE 6 years, 9 months ago
How do you explain the death penalty not been carried out.
licks2 6 years, 9 months ago
I don't get ya point. . .the Bahamas still has a lawful death penalty statue sanctioned by the PC. . . it is the government of Bahamas that will not kill anybody. . .PC said that according to our constitution we can only kill only in the worse of the worse cases. . .not for anything like were did where all killing resulted in charges likely end in death! Since the PC ruling we have yet to determine what we will call the worse of the worse killing.
DonAnthony 6 years, 9 months ago
Not to be rude but you are really confused about the privy council. The reason we have not had capital punishment carried out in the Bahamas is that the privy council has set the bar so high in its ruling that the murder must be the worst of the worst, no murder that has been ever committed in the Bahamas would qualify. This was the intended effect of course, so the court in an activist decision ensured that no one would ever be executed in the Bahamas again.
The privy council is so liberal that it will make this Bahamian judge’s ruling seem conservative. There is no way the privy council will overturn this decision. It is a pipe dream and the delusion of a fool.
sheeprunner12 6 years, 9 months ago
How can this judge's ruling contradict Article 7 of our Constitution?????? This ruling cannot stand if appealed by the Government based on Article 7. What "legal status" will Jean Rony be given if he is brought back here??????
If the Government does not appeal this case, we will then know what their policy on citizenship for "children born to illegals or single non-Bahamian mothers" is going ........ this is a dangerous precedent that requires an immediate Cabinet response ......... So far, no word.
My2centz 6 years, 9 months ago
The PM's position to the residents of the Mud this past weekend was...if you are "born here" at some point (not 18 if applied) you will be granted citizenship. I guess the constitution is meaningless...something Haitians have always known.
TalRussell 6 years, 9 months ago
Ma learned Justice Gregory, never ruled to a right to automatic citizenship. I read as Comrade Jean Rony, had enough rights be and remain in the country without being swooped up while out buy single cigarette and without giving his opportunity at due judiciary process secretly deported from the Bahamaland. The fact that he landed up in Haiti or had it been Canada, has no bearing to what the Imperial red state did him. Had Jean Rony had his day to explain his birth circumstances to a Judge, he might have never been deported? Don't you bloggers not believe in the rule law, for ALL?
licks2 6 years, 9 months ago
Thus is our argument. . .what right? The same constitution gives the government a right to discriminate for matters of national security!
TalRussell 6 years, 9 months ago
Ma Comrade, no, this is not the arguments being put forward by you and other bloggers.... so much hate and insensitivity posted here about others just because they're different. The swooping up Jean Rony, while out stroll buy a single cigarette only to be targeted by some immigration official for deportation is nothing new. For years the courts have been waning immigration officials that they must stop with bypassing the courts when it comes them being the sole judge and jury to deport,,, that they must cease unlawfully acting like state. Comrade Jean Rony's illegal swoop off the streets will become known as the single cigarette that forever changed the way officials can treat individuals born among us.
My2centz 6 years, 9 months ago
What rights are those? He had no status (or application) up until he was deported. He had "his day". In fact he had 60 days after confirming a name and birth date, that was not his own. Which could not be verified by officials. Regardless, a birth certificate is no substitute for legal status which is what the justice enforced. And legal status will eventually facilitate citizenship.
If we believe that immigration has to follow the law and take persons to court. Why are we being hypocrites when others break the law and make their own rules as well?
DEDDIE 6 years, 9 months ago
Law 101. Everyone have the right to have their day in court and face their accuser. Immigration can be sued but the court can't even if they got it wrong. The courts are there to prevent immigration from deporting legal residents.
DDK 6 years, 9 months ago
Where is a Bahamas Government statement/explanation for this momentum gathering situation?
I, for one, would like Dr. Minnis's clarification of": "Dr Minnis also stressed that anyone born in the area is entitled to citizenship. Such people, he said, should not fear seeking help from officials if they have been displaced by the fire. Under the law, a person born in the Bahamas to non-Bahamian parents is entitled to apply for Bahamian citizenship once he or she turns 18." in yesterday's Tribune edition. How does Dr, Minnis presume to know that everyone in a specific area is entitled to citizenship?
EXCERPT FROM BAHAMAS CONSTITUTUION: "6. Every person born in The Bahamas after 9th July 1973 shall become a citizen of The Bahamas at the date of his birth if at that date either of his parents is a citizen of The Bahamas. 7. (1) A person born in The Bahamas after 9th July 1973 neither of whose parents is a citizen of The Bahamas shall be entitled, upon making application on his attaining the age of eighteen years or within twelve months thereafter in such manner as may be prescribed, to be registered as a citizen of The Bahamas: Provided that if he is a citizen of some country other than The Bahamas he shall not be entitled to be registered as a citizen of The Bahamas under this Article unless he renounces his citizenship of that other country, takes the oath of allegiance and makes and registers such declaration of his intentions concerning residence as may be prescribed. (2) Any application for registration under this Article shall be subject to such exceptions or qualifications as may be prescribed in the interests of national security or public policy."
Is this not quite clear? Should Bahamians wish persons bon in the Bahamas of non-Bahamian citizens NOT to have the right to apply for citizenship within 12 months of attaining the age of 18, the Constitution will need amending.
joeblow 6 years, 9 months ago
So, if Haitian citizenship is automatically granted at birth to children of Haitian parents, is he not a Haitian citizen? Has he renounced that citizenship at any time? Is he still entitled to apply after 12 months? all questions that need to be answered.
DDK 6 years, 9 months ago
One would have thought that if application for Bahamas citizenship was not made by the age of 19, the opportunity to apply for citizenship lapsed and his citizenship reverted to that of the country of his parents, namely Haiti. Would he have then become illegal? There is also the question of the lack of birth certificate. All questions do need answers and clarification, post haste.
DEDDIE 6 years, 9 months ago
He must register at the nearest embassy. If he didn't register there is nothing for him to renounce thus the narrative of statelessness.
DDK 6 years, 9 months ago
BORN
birdiestrachan 6 years, 9 months ago
This man seems not to have a birth certificate. He has a affidavit. There is difficulty with his name. It seems he will be getting a lot of money, Bahamians are often detained and they loose their freedom. Where is the justice for them?
jamaicaproud 6 years, 9 months ago
They need to get good attorneys like Fred Smith to ensure their rights.
DEDDIE 6 years, 9 months ago
Say what you may about Fred Smith. You can't say he owes his allegiance to any political party. He makes quite a bit of moneys from the stupidity of public servants. His wins includes, beating up the Custom Department with regards to the Hawkes Bill Creek Agreement; police, prison as it relates to unlawful detention. The environment is a bonanza for him. His detractors claim that his concern is only Haitians but turn a blind eye to the fact that he is a champion for the environment.
CoolHead 6 years, 9 months ago
I never seen so much Lawyers, QCs, Judges in my life but here in tribune242 comments...they think they know more than a SC judge and a QC yet they can't even spell their names correctly...only in the Bahamas.
CatIslandBoy 6 years, 9 months ago
So true!!!!
Cas0072 6 years, 9 months ago
A questionable judgment is being questioned, just as it should be. Now if you really want to see a bunch of e-lawyers in one place, check out the Bahamas passport holding Haitians on Facebook.
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