Judges hear submissions in Jean-Charles appeal
After more than six hours of submissions from counsel representing the government and Jean Rony Jean-Charles in the Court of Appeal, Sir Michael Barnett, one of three justices on the panel hearing the case, suggested the appellate court could revise the Supreme Court’s ruling to be more in line with the authority of the courts, if it is determined the judge overreached in his original ruling.
Attorney Loren Klein, who represents the government, argued before Sir Hartman Longley, president; Jon Isaacs, and Sir Michael for the January ruling to be set aside on the basis that the judge was wrong in law and overreached his constitutional authority in ordering the appellants to issue status to Jean-Charles that would allow him to remain in The Bahamas and seek employment.
Attorney Fred Smith, QC, who represents Jean-Charles, argued for the ruling to be upheld.
Following a habeas corpus application filed by Smith last December, the Supreme Court determined that Bahamas-born Jean-Charles, who had been detained last September and sent to Haiti last November, was unlawfully detained and deported.
In his ruling, Supreme Court Justice Gregory Hilton granted, “an order directing [the minister of immigration and the director of immigration] forthwith, but no later than 60 days after the return of [Jean-Charles] to The Bahamas and upon application made by [Jean-Charles], to issue such status to [him] as would permit him to remain in The Bahamas and to legally seek gainful employment”.
The judge said the issue of uncertain status cannot be a basis for detention and deportation.
The judge dismissed the habeas corpus application, however, as Jean-Charles was not in the state’s possession at the time of the application.
Klein argued that the judge was right to dismiss the habeas corpus application, but all evidence represented by the applicant in support of that application should have also fallen away.
He said the judge made a “quantum leap” to rule on the substantive constitutional motion based on the evidence supporting the habeas corpus application, which the government deemed second-hand, and wrought with factual discrepancies.
Klein said the discrepancies should have been discovered and “ventilated” in the Supreme Court.
He was largely referring to the affidavit of Jean-Charles’ sister, who, for instance, claimed that her brother had never travelled outside of The Bahamas.
Sir Michael said he did not know if it was fair for the Court of Appeal to make a determination on the matter, and suggested a retrial may be more appropriate, given the disputable facts that had not been determined as argued by the attorney for the Crown.
Klein said a retrial would be a halfway point.
But Smith argued that if the government had further evidence to submit, it would have done so already, insisting a retrial would be futile.
He asked for the appellate court to not look at procedural details, but whether there was sufficient evidence to demonstrate Jean-Charles’ rights were breached, “and we say that they were”.
Sir Michael later said there would be no point in a retrial if there were no additional facts to be discovered.
He also suggested the appellate court could revise the judge’s ruling with respect to the order granting status to be more in line with the authority of the court.
“If, in fact, there are no additional facts to be discovered, but for whatever reason the court believes the trial judge may have gone too far in the order that he has made, well, this court can always reform or revise them to bring them within what the courts are able to do,” he said.
“But that does not require a re-hearing.”
Addressing the panel, Klein said it is one thing to recommend a course of action to the executive, but it is another to direct the government on a matter of status, where it has sole discretion.
On the point of status, Klein argued that the state has the sole discretion.
He referenced the 1980s case of D’arcy Ryan versus the government where the supremacy of the constitution was affirmed by the Privy Council.
But while the high court determined Ryan was entitled to citizenship, the court could not force the executive to provide it.
The matter was adjourned to June 22 where Smith is expected to continue his submission.