Human Rights and Constitutional Lawyer Fred Smith  is seeking leave to appeal to the Privy Council in the controversial immigration case of  Jean –Rony Jean Charles.

Recently,The  Court  of Appeal found that the  Justice Gregory Hilton  was not  entitled  to   consider  or   grant  the   Jean- Rony’s application for  relief  pursuant to Article  28 of the Constitution and    that  he   should    have instituted new proceedings if he wanted to seek that relief.

Mr. Smith is asking the Privy Council to find that Judge Hilton was correct in finding that Jean- Rony’s constitutional rights were breached; to reverse the decision of the Court of Appeal; uphold  Justice Hilton’s decision and to reinstate Jean Rony’s entitlement to damage and costs.

The lawyer insists that it was wrong of the Court of Appeal to ignore the abuse suffered by Jean Rony at the hands of the government, when they had all of the powers under article 28 of the constitution to determine if his rights had been breached.

Documents  filed by Atorney Smith of Callenders and Company state: “The  Court  of Appeal  erred in finding that the proceedings were brought to an end, so as to preclude the determination of the     constitutional    application,   by     the    Judge’s determination in  relation to  the  writ  of  Habeas Corpus. Alternatively, the Court  of Appeal erred in holding that the

Judge’sorder   dismissing the  writ   was  appropriate, and should have  held  instead that he  should   have  made  no order  on the  writ.

“The  Court  of Appeal  was wrong  to allow the  appeal on the basis that  it   was    unknown  at   the    time    that  the constitutional  application was   determined whether the Respondent was    the     person     whose    detention   and deportation were  referred to in the  return to the  writ.  On the  true reading of his  judgment, the  Judge held  on the balance of probabilities that they  were  the  same  person. Alternatively, the  issue  of the  Respondent’s identity was, or should have been, resolved on appeal, including by virtue of the concession in that regard made  by the Appellants.

“The  Court  of Appeal erred in  holding  that the  Judge had insufficient evidence   before    him    to    determine  the constitutional application. The  Judge was  entitled to rely on the  affidavit of Clotilde  Jean Charles and  did so. In any event the  judge  was  entitled to  rely  on  the  facts  in  the Return and    they     were    sufficient   to    found    relief. Alternatively, the  Court  of Appeal  had  sufficient evidence before it to determine the  constitutional application in the Respondent’s favour  and  should have done so.

“The  Court  of Appeal erred in  allowing the  appeal on the basis  that the  Appellants had  an  insufficient opportunity to respond to the constitutional application. The Appellants did have  such  an  opportunity, did  respond, and/or waived any objection on that ground. Alternatively, any such defect should have  been,  and  was,  cured  on appeal because the Appellants had  the  opportunity to, and  did,  respond fully in the course of the appeal in relation to the issues engaged by the Judge’s ruling.

“The  Court  of Appeal erred in  determining the  appeal on matters that were  not grounds of appeal.

“The  learned Judge was correct to find that the  Appellants had   breached the   Respondent’s constitutional  rights  by virtue of   the    unlawful  circumstances  of   his    arrest, detention and  deportation and  that he lacked  adequate alternative means of redress. The  constitutional relief ordered by the Judge was appropriate and it was within his powers to order  it.

“In  the  alternative, the  Court  of Appeal was  moved  to and failed  and  thereby erred in failing to exercise their original and  or concurrent Article  28 Constitutional jurisdiction to uphold  the  learned Judge’s judgement and  or to grant the same  and or similar constitutional relief to the Respondent as  was  granted by  the  learned Judge, especially having regard to: the  fact that there was  no ground of appeal challenging the   jurisdiction of the  learned Judge to  exercise the Supreme Court’s Article  28 Constitutional jurisdiction in  the  circumstances that  he  did;  the  only  ground of appeal was that the  Respondent had  alternative means of redress available to him  and  should  have  exhausted them  first additional evidence that was before the  Court  of Appeal and which was not before the learned Judge at trial,” stated the filing for the appeal before the judicial committee of the Privy Council.

After  the ruling of the Court of Appeal last month, Mr. Smith  told this Journal that the Justices, led by Sir Michael Barnett, did not deal with the constitutional issues in the case.

He said the question was about a person born in the Bahamas, whether they can or cannot be legally deported or expelled and whether or not the Supreme Court has the power to order the government to release somebody, or whether or not the Immigration Department does or does not have the power to detain people who were born in the Bahamas who are citizens in waiting remains unresolved.