EDITOR, The Tribune
Mr Jean Rony Jean-Charles is only the latest person to be ushered into our constitutional waiting room in the hope of getting a prognosis on his immigration fever.
It is doubtful that the fever will break soon. And it has nothing to do with the recent ruling from the Court of Appeals which had everything to do with upholding due process and the rule of law and nothing to do with whether Mr Jean-Charles has a constitutional off-ramp that would allow him to stay here legally, permanently.
The legal facts do not stack in his favour. His immediate recourse is to the court of public opinion. He should give up his legal pursuit and throw himself on the mercy of the Bahamian people. The people can ask the government to show him some leniency.
Mr Jean-Charles might also want to reconsider what are the new favourite letters in his legal alphabet soup because the last time he called on a Q and C, he was merely pulled from the heat of the front flames and left to simmer on a back burner.
Fred Smith, QC, was dealt a crushing defeat by the learned Appeals Court judges when they ruled only on a point of law and scolded the trial judge for erring in ordering the execution of a habeas corpus writ for a body, presumably the real Mr Jean-Charles (the court couldn’t establish if he was the real McCoy) that was no longer in the court’s jurisdiction. A habeas corpus writ is Latin fancy words for “you better bring him to court, or else”.
Mr Jean-Charles, who at birth became a Haitian citizen born in The Bahamas, was removed from the country by immigration officials because he could not prove to their satisfaction that he had a right to remain here.
The smooth-talking QC got a court order to have Mr Jean-Charles brought back to The Bahamas to make a case before the courts as to why he should be permitted to stay.
The Appeals Court very loudly told Mr Smith, in essence: “No, no, no sweet boy. Nothing go so”.
Had the original judges’ order been upheld it would have set a very dangerous legal precedent and could in fact be viewed as an affront to the Constitution. A Bahamian court has no jurisdiction in Haiti where the body was at the time of the writ. And it was not established to whose body the writ applied.
It is not exactly clear that Smith believed the snake oil he was peddling to that lower court, but probably out to respect for his silk, the judge allowed his habeas corpus writ and Mr Jean-Charles was brought back to Nassau at the state’s expense.
The Court of Appeals told him that any legal remedy he might seek could only be found down the treacherous road of constitutional reform. Good luck with that, Sir.
Still there are many more like Mr Jean-Charles and there is every indication that we haven’t heard the last from Fred Smith. Both of these situations should give us serious pause.
It may be legally right, but morally unacceptable and certainly not Christian (as we say we are) to leave people in legal limbo. We have too many in our midst we need to be regularized in some way or the other.
Mr Jean-Charles got a brief taste of what a hell-hole some parts of Haiti actually are. And he reacted as anyone raised in The Bahamas would, with revulsion and a deep appreciation for what we have here.
But pity for Haiti doesn’t help him to remain here. Bahamas-born is not the same as Bahamian-born. Since he was Haitian at the instant of his birth to Haitian parents in the Bahamas, and because he apparently neglected his opportunity on his 18th birthday to apply for Bahamian citizenship as the Constitution allows, it could be that his only option is to seek to be regularized in Haiti.
With proper documents in hand, he could then apply to our Embassy in Port-au-Prince for some sort of residency status here. It’s no small matter that he could show up with a wheel barrel full of good references from Bahamians, everyone from his kindergarten teacher to his barber.
While Bahamians don’t like uppity people, they have a lot of compassion for someone who, through no fault of their own or of our imperfect system, is caught in a legal quagmire and is genuinely grateful for our mercy.
And if reading the ruling from the Court of Appeals isn’t enough to keep him busy, Fred Smith QC should dig up a piece of legal magic called the Habeas Corpus Act of 1679 passed when King Charles II was on the throne.
Sir Michael Barnett, QC, in writing for the unanimous Court of Appeals showed that he understood every page of this ancient document.
October 23, 2018