Fred Smith with Jean Rony Jean-Charles in Haiti.
By AVA TURNQUEST
Tribune Chief Reporter
aturnquest@tribunemedia.net
ATTORNEY Fred Smith believes the landmark Supreme Court ruling on Bahamas-born deportee Jean Rony Jean-Charles has now paved the way for people born in the Bahamas to non-nationals to seek protection from unlawful expulsion.
Mr Smith called on the government to immediately begin the process of repatriating to the Bahamas the “thousands” of persons born in the Bahamas who have been unconstitutionally expelled.
However, the outspoken QC told The Tribune he had little faith in the government’s intent to adhere to legal precedent set by Supreme Court judgments given its track record.
Mr Smith said the failure of successive governments to apply the principles espoused by the courts across a wide cross-section of national issues has severely hampered the development of good governance.
“There is an unfortunate and long history of the government not respecting judgments issued by the Supreme Court,” he said.
“Secondly there is a further issue, and that is if they do respect the ruling of the court, they don’t apply it to other similar cases as precedent setting and so what it means is that even though judgements in the Supreme Court may affect hundreds if not thousands of people or categories, the refusal of the government to apply the principles enunciated by the court generally has really hampered the development of good governance in the Bahamas.
“This has repeatedly occurred in the environmental and regulatory fields, it’s happened in the police brutality cases that I’ve done, and it has regularly occurred over decades with the successful judgments upholding the rights of licensees under the Hawksbill Creek Agreement. I hope, however, that this government will be different.
“I say that because Prime Minister Dr Hubert Minnis at his inauguration said that his government would be different and would respect and uphold the rule of law.”
Attorney General Carl Bethel yesterday confirmed the government plans to “fully appeal” Supreme Court Justice Gregory Hilton’s ruling on Tuesday, which ordered the government to immediately issue a travel document for Mr Jean-Charles and reimburse him for his travel back to the country, declaring that his rights under the Constitution have been breached.
Justice Hilton said that Mr Jean-Charles, upon making an application, must be issued legal status no later than 60 days after his return.
Yesterday, former Minister of Immigration Fred Mitchell called for the government to appeal the judgment up to the highest level, the Privy Council.
In a statement yesterday, Mr Mitchell advised the current decision should be stayed pending appeal.
“This is unprecedented,” Mr Smith continued.
“The Supreme Court has paved the way for so many people who were born in the Bahamas to now move the Supreme Court under the Constitution to protect their constitutional right not to have been unlawfully expelled. This is a first in Bahamian jurisprudence and because it applies to a huge category of persons, it is very important for this government to demonstrate that it is respecting the rule of law, and to itself embark upon an exercise of repatriating to the Bahamas the thousands of citizens-in-waiting born in the Bahamas that have over the decades been expelled unconstitutionally.”
Mr Smith added: “A responsible and law-abiding government should not have to wait for people to sue them to do the right thing. And the right thing here is to bring back people born in the Bahamas so that they can claim their rightful birthright.”
‘Overdue’
Weighing in on the Supreme Court judgment yesterday, former Minister of National Security, with responsibility for Immigration, Loftus Roker noted that “time been up long time” for the government to systematically address immigration challenges.
“If you look at the shanty town thing,” he said, “all of that is part of it. We only look at things when it confront us right in our face, as soon as it quiets down you forget it and this applies to all of us (successive administrations). They all do the same thing, they only look at it when they come face to face with it. We’ve been independent now for what over 40 years. Our Constitution was in existence for over that and we haven’t found a way to systematically deal with immigration.
“What we have now is a statement was made by the government that by the 31st of December (2017), all these illegal immigrants should leave the Bahamas, this is now the last day in January. And nobody told us what happen. Are they leaving? This is the end of January, that’s our problem, we forget that now and we moving on to something else.
“We move on to this fella (Mr Jean-Charles), I don’t know whether he is a Bahamian or not or anything like that.”
Mr Roker pointed to the high potential for fraud in the current process to obtain an affidavit as it related to establishing a person was born in the Bahamas.
Mr Jean-Charles was born at the Princess Margaret Hospital, according to an affidavit supporting his habeas corpus application, which also contained a copy of his birth certificate.
Minister of Immigration Brent Symonette also brought up the issue of fraudulent documentation yesterday, noting Mr Jean-Charles’ case will bring the longstanding issue of fraudulent documentation to the forefront.
However, Mr Symonette made it clear that he was not seeking to establish the fraud issue as relevant to Mr Jean-Charles’ matter, or speaking directly to his case because he had not yet reviewed the matter fully.
“Anybody can go and swear an affidavit,” Mr Roker said, “don’t blame the JP. We knew this 20 years ago, that’s the problem.
“Part of my problem is the fact that I never had a detention centre when I was there, I went to court with you and I carry you up to Fox Hill and then I deport you. Once you start ignoring the law you gonna get yourself in trouble.”
He added: “The time been up long time, and you’re gonna find more people. If this fella get away with that.”
Comments
TalRussell 6 years, 2 months ago
Ma Comrades the PM and his Minister Immigration Brent have foolishly opened the gates for King's Council to uncork the citizenship genie's bottle for the thousands in Haiti just waiting tap into Bahamaland's citizenship and like everything else they've touched since May 10, 2017, they've fucke# it up even worse than it ever was. Now, PM, Minister Brent and AG Carl Wilshire.... what hell now?
TheMadHatter 6 years, 2 months ago
The problem lies with Minnis. Back in September or so when he set the deadline for Mr. Jean Charles to leave the country by December 31st, he SHOULD HAVE said that deadline applied to all illegals - not just this one guy and his employer.
What an incredible waste of resources that we have hundreds of immigration officers on the payroll just to deport ONE guy. Crazy.
The second thing is we have not heard about any charges against his employer. I mean, if Minnis is only allowing the department to deal with this one guy then at least his employer should be charged. It is a shame no other employers can be charged - but we have to thank God for small favors.
What about his fingerprints? Was he fingerprinted before he was deported?
OldFort2012 6 years, 2 months ago
I find it incredible that as a nation we are such a bunch of incompetents.
It should be obvious to anyone with 2 brain cells that Immigration cannot deport. That is the job of the Courts. And while the Constitution is so ambivalently written and open to all sort of interpretations, no Court will deport.
Call a referendum, change the Constitution. This can be done in 1 month. No chance it does not pass. Wording changed to "children of legal immigrants" born here are Bahamian.
Then situate an Immigration Court at Fox Hill & Carmichael and get on with the job of deporting them. LEGALLY.
licks2 6 years, 2 months ago
I agree with you on all points except. . ."the court will not deport". . .it has no choice. . .the law dictates that they do. . .they have been and are now doing so. . .the problem with this case is that the ID were not taking those of Haitian decent to court. . .they are just too many. . .this case only serves to force them to now go to court!
TheMadHatter 6 years, 2 months ago
In addition Mr. Smith, more than anyone, ought to know full well that precedent does not operate in the criminal Courts. Defense lawyers have repeatedly tried to use it in their client's interest, and in a bona fide manner - only to have their arguments tossed aside.
licks2 6 years, 2 months ago
TRUE. . .especially if that case was overturned in appeal or by the PC. . .but it can be used to establish a 'line of reasoning and logical outcome" used and handed down by a previous case decision. Also, I can be tried for murder of joe bain. . .previously killed 4 persons before joe bain. . .that damning information can't be used against me in the current trial. . .I am before the court for killing joe bain. . .not the 7 others. . .only information for the joe bain case is allowed. . .if any persons inadvertently introduce that information it can result in a mistrial, dismissal or ground for dismissal on appeal because of information that prejudiced my right to fair trail fro killing joe bain!
TalRussell 6 years, 2 months ago
Ma Comrade OldFort2012, I ain't making this up, okay.... but the prime minister is establishing a 'DELIVERANCE OFFICE' and why you asks..... cause he says it's impossible him personally keep track all things he promises do.... and you got's knows deputy pm "KP's" jealously going set-in wanting establish he own DELIVERANCE OFFICE.{Can't make these two man's, up}
sealice 6 years, 2 months ago
and thousands more could give a crap - why are we still on about (1) illegal? Isn't there a clear and concise line.... one side you supposed to be here..... one side you aren't?
licks2 6 years, 2 months ago
True my fellow. . .its all "cash on the barrel head" from here on in. . .Mr. Smith's "antics" has finally done him in. . .illegals paying fines, going to jail before deported, getting a criminal record, enforcement of article 7 of the constitution. . .this case is a pyrric victory for Mr. Smith. . .he shot the whole HAITIAN COMMUNITY IN THE FOOT. . .this mess has just begun for the migrants. . .
TalRussell 6 years, 2 months ago
Ma Comrades there's one certainty hanging over the heads of Minnis, Brent and "KP" - so shall "KP" and Brent be hitching rides home with their bossman's - once all three get fired.. These three man's are so inept at governing that they're clueless how throw red meats to keep their own red party's members content. A 'DELIVERANCE OFFICE; is way beyond even my pay grade make up}. I needs study up on Sandilands and what all it offers for man's whose monies is no issue?
Regardless 6 years, 2 months ago
......Fred Smith has absolutely no concern about national security of the Commonwealth of The Bahamas.
DDK 6 years, 2 months ago
Might go further and say he is a THREAT to our national security.
DEDDIE 6 years, 2 months ago
Hats off to Fred Smith. If I ever need a lawyer, I will definitely look him up. Could anyone name another lawyer in The Bahamas as passionate about the causes he has champion over the years. The guy is tenacious.
Regardless 6 years, 2 months ago
.....there are far more capable lawyers in The Bahamas.They just happen to have more pride in their nation's history, beauty, culture and potential than to want to destroy it.
My2centz 6 years, 2 months ago
Fred Smith is not a legal genius or passionate about the law. The issue is the government never bothers to send competent lawyers to defend their position. Sometimes no lawyer appears at all. They even sent Gomez, now a Rights Bahamas associate to defend the Bahamas against UNHCR claims. They are not serious.
DEDDIE 6 years, 2 months ago
...the challenge was to name one. Better still, if the police was to arrest you and beat you and tell you they made a mistake, who would you call.
Regardless 6 years, 2 months ago
Thomas Evans QC for starters. Fred Smith could not reach Evan's IQ or knowledge of the law even if he was jumping on a trampoline.
birdiestrachan 6 years, 2 months ago
This case has issues even a young child can see. the man had more than one name. There were also different days of birth. The Haitian Embassy had no record of him being deported According to the out spoken QC and his Family he was lost. "The judge gave the Bahamas Government a deadline to produce him. The deadline us up then the Drama King found him in Haiti among millions. There are lots of Questions in this case.
King Solomon was a wise Judge. many are not so wise.
joeblow 6 years, 2 months ago
Never knew a PLP could have a logical thought sequence. There is hope for you yet!!
Sickened 6 years, 2 months ago
This will most likely have a negative impact on about 350,000 Bahamians, and a positive impact for about 60,000 illegal Haitians living in The Bahamas, and +10,000,000 Haitians trying to get to The Bahamas.
TalRussell 6 years, 2 months ago
Ma Comrades, rather than wrestle with pressing immigration issues the very first action taken within weeks coming to power by PM Minnis and Deputy PM KP, was to reward their private sector cronies with a whopping 25 basis point reduction in the Bahamaland License fee rate... resulting in the pocketing of hundreds thousands dollars to millions being diverted from the public treasury for the 2017 tax year alone.... now, they cry crocodile immigration tears.
Ma Comrades, whilst you're free so do, how can you believe a word?}.
Both the Imperial red state and RBC (Canada), thinks there is no more room Bahamaland for the LOWER CLASS PEOPLES. {I know you thinks this is all made up out envy or political spite, but its not}. According to official statistics of those who couldn't find work in 2017, we damn well know that basis point reduction never created a single job from the private sector.
killemwitdakno 6 years, 2 months ago
I understand bringing Rony back on the basis that immigration apparently didn't let him make calls and didn't have record of him being deported or being there, fishy breech in procedure, but being able to prove after fact is different from illegal deportation. This might be wrongful deportation but others would simply be an appeal, where they were deported accidentally because they couldn't prove even being given full opportunity to do so , accurate procedure. Can't blame immigration if you're caught up in the sweep for you not meeting the deadline in the constitution to submit and then also Mitchell's grace period without securing a lawyer previously for a qualifying excuse and additionally not having any of the documents.. Can only blame them for not giving all the allowances they're supposed.
The process isn't simply saying they were born here and then not having to show immigration anything, otherwise how will the green team approach obvious recent landers? If a boat lands in Inagua where everyone knows everyone, all they'll have to do is say they were born here to the officer and be awarded clogging up court after finding and showing solely a fake birth certificate (then suing). Everyone who lived here for 15 years from childhood should do court. If you were born here and don't want to do court, apply. With a pending article 7 submission you wouldn't even end up in Carmichael. So detention (although other methods could be used) is not illegal if you know you're supposed to have the proof. The only reason they wouldn't already have expulsion protection would be because they never submitted or got rejected.
Does this precedent mean the ones born here who went back as babies waiting until 18 to apply at their embassy or never thought of doing so can just return without being naturalized? There's also no deportation record on them. So now you're going to have to take scores of thousands of those in America too facing Trump deportation even though they left voluntarily if taking someone's word for it is all needed to avoid an immigration officer.
The time spent in the Bahamas has to be considered. Any article 7 young child that went back with the parent shouldn't be considered illegal deportation.
Immigration should have digital records. With this case, fake birth certificates and lost claims will go up if his time here isn't considered since applying is no longer needed. I think the application is $5?
bogart 6 years, 2 months ago
Fred Smith has opened many eyes on the inefficiencies, injustices, unfairness that has been under our noses for so long by successive govts. Will he now style himself as Emperor Jacques Ii as undoubtedly thousands both in the Bahamas and in Haiti will want to bestow on him.
SP 6 years, 2 months ago
Pindling, Ingraham, and Christie are 100% responsible for this shenanigan and should be charged with dereliction of duty and treason!
PM Minnis better get this right before we are deluged with more Haitian parasites jumping on the Bahamian donkey ride gravy train.
Haitians have proven to have absolutely no allegiance to the Bahamas, are not welcomed here, and certainly, do not deserve citizenship!
Haitian Maronique Paul, of Malcolm Road, now facing multiple charges of killing in the course of dangerous driving; driving while not insured against third party risk; driving an unlicenced vehicle; driving without a valid driver's licence; fraudulent use of a licence plate; fraudulent use of a licence disk; and failing to remain stationary after an accident stemming from Monday night's hit and run accident which claimed the life of Malcus Ashe of Sunshine Park is a classic example of Haitians total disregard for our laws and typical Haitian behaviour.
Call a Constitutional change referendum immediately and allow "the people" to voice their opinion.
We need more parasitic Haitians less than we needed useless Pindling, Ingraham, and Christie!
juju 6 years, 2 months ago
This is just the type person the Bahamas needs back in the country. Clean cut, bright, well dressed, highly educated...
bogart 6 years, 2 months ago
Which national address you been looking at?
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