The Tribune

By RASHAD ROLLETribune News Editor

rrolle@tribunemedia.net

THE Privy Council has reopened the landmark constitutional fight over Jean-Rony Jean Charles’ detention and expulsion to Haiti, sending the case back to the Supreme Court even though the Bahamas-born man was murdered before the courts could resolve whether the government violated his rights.

Jean-Charles, who was stabbed to death in August 2023, had challenged the government’s decision to detain him for more than two months and expel him to Haiti in 2017 without charging him, taking him before a court, or obtaining a deportation or detention order.

The London-based court stopped short of restoring the sweeping Supreme Court findings that his arrest, detention and expulsion were unconstitutional. 

However, it ruled that Bahamian courts must not use a rigid procedure to block people from seeking urgent constitutional redress in habeas corpus proceedings, particularly in cases involving detention and removal from the country.

His death changes the practical stakes of the case. The Supreme Court can no longer grant him personal relief such as immigration status, work authorisation, or protection from further immigration interference. 

However, his estate may still be able to pursue compensation or other relief if the constitutional claim survives him, while the broader principles of the Privy Council ruling continue to shape immigration detention cases.

The ruling marks another chapter in a case that became one of the country’s most prominent legal battles over immigration enforcement, citizenship, and the status of people born in The Bahamas to non-citizen parents.

Jean-Charles was born at Princess Margaret Hospital on December 5, 1982, to Haitian parents. 

He was not registered as a Bahamian citizen, and the Privy Council noted that it appeared to be common ground that he did not apply for registration as a citizen between his 18th and 19th birthdays, as he may have been entitled to do under Article 7 of the Constitution.

However, the Board also noted that it did not appear to be contested that he would be entitled to permanent residence if it were established that he was born in The Bahamas and had lived here all his life, or had only travelled abroad and returned with the necessary authorisations.

That finding gives the ruling significance beyond Jean-Charles’ case. It underscores that immigration officers cannot treat a person’s lack of documents as a shortcut to detention and expulsion where that person may have been born in The Bahamas and may have constitutional or statutory rights requiring investigation.

Immigration officers arrested Jean-Charles in the Fire Trail Road area on September 18, 2017, after he failed to produce documents during what was described as a routine status check. He was taken to the Carmichael Road Detention Centre and held there until November 24, 2017, when he was expelled to Haiti.

The Privy Council said the authorities did not charge him with any offence, did not take him before a court, and did not obtain a deportation or detention order before removing him from the country.

His sister, Clotilde Jean Charles, later swore an affidavit saying he had been born in New Providence, had never travelled outside The Bahamas, and had been detained for about 12 weeks while relatives repeatedly tried to secure his release.

His family filed habeas corpus proceedings on November 29, 2017, five days after he had already been sent to Haiti.

The case exposed uncertainty in the immigration system’s handling of identity and status. The government maintained that there was confusion over whether the man detained and expelled as “Jean Charles,” born on December 1, 1985, was the same person as Jean-Rony Jean Charles, born on December 5, 1982.

The Privy Council was unconvinced by the strength of that position, saying it “struggles to see any substance” in the suggestion that there was a real issue over whether Jean-Charles was the man whom officials expelled and later returned to The Bahamas.

The Board pointed to several undisputed facts: Jean-Charles’ family tried to secure his release after the September 2017 detention; government officials had said he was repatriated to Haiti; officials used a photograph of him on an emergency travel document; the respondents’ own written submissions stated that the applicant was in Haiti; and his family successfully secured his release after the man returned to The Bahamas.

The judges said the identity issue was something the respondents should have been able to resolve “without difficulty” in cooperation with Jean-Charles and his family and “without needing a contested court hearing.”The ruling also cast doubt on another possible government position: that Jean-Charles may have travelled outside The Bahamas without authorisation and returned illegally, potentially justifying his arrest, detention and removal.

Tom Poole KC, for the respondents, accepted under questioning that this was speculation. The Privy Council noted that he did not assert that the government had evidence to support it.

The Board said it was unclear how such an investigation would help the respondents defend the legality of Jean-Charles’ arrest, detention and removal unless they could show, among other things, that he had landed in The Bahamas within a relatively short time before his arrest.The case first came before Justice Gregory Hilton, who dismissed the writ of habeas corpus because Jean-Charles was no longer detained by the respondents when the writ was issued.

However, Justice Hilton went on to grant constitutional relief. He found that Jean-Charles’ arrest and detention breached his rights to personal liberty, access to a legal representative, and prompt appearance before a court. 

He also found that his expulsion from The Bahamas breached his right to freedom of movement.Justice Hilton ordered the government to issue travel documents allowing Jean-Charles to return from Haiti, pay for his return, grant him status allowing him to remain in The Bahamas and legally seek gainful employment, and pay compensation to be assessed later.

The government issued an emergency travel document identifying him as Jean-Rony Jean Charles. He returned to The Bahamas on February 3, 2018, but was arrested again on arrival and taken to the detention centre. Justice Hilton later ordered his release.

The government appealed, and the Court of Appeal overturned Justice Hilton’s constitutional orders in October 2018. It also rejected Jean-Charles’ cross-appeal over the habeas corpus ruling.The Court of Appeal held that the constitutional relief should not have been granted in the way it was pursued. 

One judge said habeas corpus was a discrete action and that Jean-Charles should have brought separate proceedings if he wanted constitutional redress.

The Privy Council rejected any broad rule requiring separate proceedings.Lord Hodge, delivering the unanimous judgment, said Article 28 of the Constitution does not impose formal procedures for constitutional claims and must be interpreted in a way that facilitates access to the court.

The Board said that constitutional provisions should be interpreted liberally so that people receive the full protection of the rights and freedoms the Constitution confers.

However, the Privy Council also found that Justice Hilton acted unfairly when he determined the constitutional claim without giving the government a proper opportunity to investigate and answer disputed factual issues.

The Board said the respondents should have been allowed to adduce evidence on matters including Jean-Charles’ correct name, citizenship, travel history, the circumstances of his arrest, his detention and his removal to Haiti.

“Where there are substantial disputes as to fact, it will be rare that a summary procedure is appropriate,” Lord Hodge said.

The Privy Council said the proper course was for the Supreme Court to direct that the constitutional proceedings continue as though they had begun by writ, with pleadings, discovery and evidence where necessary.

The Board therefore allowed Jean-Charles’ appeal only to the extent of sending the constitutional claim back to the Supreme Court.

The judgment signalled impatience with delay. Lord Hodge noted that Jean-Charles had not been provided the necessary papers to obtain a work permit, and said, “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.”

A man was later charged with Jean-Charles’ murder. 

Prosecutors said Jean-Charles was stabbed multiple times during an argument in the Royal Palm Street area on August 23, 2023.