The Tribune

By KHRISNA RUSSELL

Tribune Chief Reporter

krussell@tribunemedia.net

THE Judicial Committee of the Privy Council has awarded Bahamas-born Jean Rony Jean-Charles the right to have his case returned to the Supreme Court for consideration of an application of constitutional aid over his detention and repatriation from the country more than five years ago.

This development is the latest in Mr Jean-Charles’ legal battles concerning his expulsion from the Bahamas to Haiti on November 24, 2017, after being detained from September 17 of that year.

Subsequently, Supreme Court Justice Gregory Hilton made a landmark ruling that both his detention and expulsion were unlawful.

At the time, Justice Hilton further found that Mr Jean-Charles was deprived of his personal liberty, unlawfully arrested and detained/falsely imprisoned in breach of his rights guaranteed him under the Constitution.

 Although the ruling was thought by many to have far reaching effects on how the country handled similar matters of citizenship, the Court of Appeal dismissed Hilton’s ruling due to procedural issues.

 In a ruling handed down yesterday, the Privy Council recounted the particulars of the case, concluding that “the appeal be allowed, but only to the extent of remitting the application for constitutional redress to the Supreme Court to enable it to direct that the application proceeds as though begun by writ.”

 The London body said parties have to lodge their submissions as to costs within 21 days.

 Mr Jean-Charles was represented by Edward Fitzgerald, KC, Frederick Smith KC, Adrian de Froment and Roderick Dawson Malone. Tom Poole, KC, and Kayla Green Smith were Crown counsel.

 In the Privy Council’s analysis and determination, the board noted that the parties were correct in their agreement that it was competent for the appellant to raise an application for constitutional redress by motion in his action for habeas corpus. This is based on several key articles of the Constitution among them Article 28, which reads: “If any person alleges that any of the provisions of Articles 16 to 27 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.”

 The JCPC also noted: “It is clear from the wording of paragraph (1) of Article 28 and the expansive nature of what is provided in paragraphs (4) and (5) that the Constitution does not lay down any formal procedures to be followed when an applicant seeks constitutional redress and that it seeks to facilitate the exercise by the Supreme Court of its constitutional jurisdiction. Although Parliament has not made laws relating to practice and procedure in this field, paragraph (5) is unquestionably facilitative in its intention. An expansive approach to Article 28 of the Constitution is also consistent with the well-established constitutional jurisprudence of the board that provisions of the Constitution be given a liberal interpretation in order to give individuals the full measure of the rights and freedoms which the Constitution confers.”

 Additionally, the committee said it appears to be common ground that Mr Jean-Charles did not apply for Bahamian citizenship between his 18th and 19th birthdays “as he may have been entitled to do under Article 7 of the Constitution.”

“It also does not appear to be contested that the appellant is entitled to permanent residence in The Bahamas if it is established that he was born there and has resided there all of his life or, if he has travelled outside The Bahamas, he has done so and returned with the necessary travel authorisations,” the body said.

 “The respondents wish to investigate whether the appellant may have travelled outside The Bahamas without authorisation and may have returned illegally as a possible justification of the arrest, detention and removal to Haiti.

 “Mr Poole on being questioned by the board accepted that this was a speculation. He did not assert that the respondents had any evidence to suggest that the appellant had done so. It is not clear how an investigation into whether the appellant’s mother had obtained travel documents for her family, including the appellant, will serve to show on the balance of probabilities that on some occasion the appellant travelled out of and returned to The Bahamas illegally. In any event, it is not clear how such an investigation will assist the respondents in asserting the legality of the arrest, detention and removal of the appellant unless it is demonstrated among other things that the appellant had landed in The Bahamas within a relatively short time before his arrest on 18 September 2017.

 “In these circumstances the appropriate course of action is to remit the application for constitutional redress to the Supreme Court so that that court can direct that the constitutional proceedings continue as though begun by writ. The court can decide what ancillary directions are appropriate to enable the parties to assemble and file relevant evidence and to advance legal arguments in those proceedings. It appears to the Board that the factual issues between the parties are in short compass and ought to be capable of resolution in a timely and proportionate manner.

 “Mr Smith informed the board that the appellant had not been provided with the necessary papers to obtain a work permit. Given the passage of time it will be important that the court manages the case so as to prevent dilatory behaviour which might delay the resolution of this case.”