Jean-Rony Jean Charles v The Honourable Carl Bethel (in his capacity as Attorney General of the Bahamas) and others (Bahamas)

Constitutional redress proceedings should be accessible and flexible. Article 28 of the The Bahamas Constitution does not require a separate action where redress is sought alongside habeas corpus. Evidence filed for habeas corpus may also be considered on the constitutional application. Flexibility is subject to procedural fairness: respondents must receive notice of the substance of the application and a fair opportunity to investigate, adduce evidence and make submissions. Summary procedure is generally unsuitable where substantial facts are disputed. The court may direct that the constitutional proceedings continue as if begun by writ, with appropriate pleadings, discovery and case-management directions.

The appellant alleged that Bahamian immigration authorities had arrested, detained and expelled him to Haiti without charge or a deportation order. His family obtained leave to issue a writ of habeas corpus. The Supreme Court dismissed the writ because he was no longer detained when it was issued, but granted constitutional redress under article 28 of the The Bahamas Constitution. The Court of Appeal allowed the respondents’ appeal, set aside the orders and dismissed the appellant’s cross-appeal. The appeal concerned whether constitutional redress could be sought by motion in the habeas corpus proceedings and whether the Supreme Court had acted procedurally unfairly by determining disputed factual matters without allowing the respondents to investigate and adduce evidence.

Appeal allowed in part. Lord Hodge delivered the unanimous judgment of the Board. The constitutional-redress application was remitted to the Supreme Court for case management and determination.

1. Available procedure. Article 28 of the The Bahamas Constitution permits an application for constitutional redress to be made by motion within an existing habeas corpus action. It does not impose a general requirement for separate proceedings. Evidence filed for the habeas corpus application, including the affidavit and Return, remained relevant and admissible on the constitutional application.
2. Constitutional interpretation and fairness. Article 28 is facilitative and should receive an expansive interpretation which enables individuals to obtain the full measure of constitutional rights. That procedural flexibility is qualified by the need to give the person against whom redress is sought notice and a fair opportunity to answer. The principle was reflected in Jaundoo v Attorney General of Guyana [1971] AC 972.
3. Procedural unfairness. The application for redress was raised at the last minute while identity and other factual matters remained disputed. The appellant’s counsel had suggested an adjournment and further evidence. The respondents were entitled to expect an opportunity to investigate and respond if their preliminary objection failed. Their failure to apply separately for an adjournment did not waive the objection. The judge therefore acted unfairly in determining the constitutional application on the existing material.
4. Summary procedure and disposal. Where substantial factual disputes arise, summary constitutional-redress procedure will rarely be appropriate. Consistently with Jaroo v Attorney General of Trinidad and Tobago [2002] UKPC 5 and Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, the appropriate course was to direct that the proceedings continue as though begun by writ, with suitable directions for pleadings, discovery and evidence. The Board did not determine the merits of the alleged constitutional breaches. It remitted the application and directed the parties to lodge submissions on costs within 21 days after promulgation of the advice.

1. Privy Council: Appeal allowed only to the extent of remitting the constitutional-redress application to the Supreme Court so that it could proceed as though begun by writ: [2022] UKPC 51.
2. Court of Appeal of the Commonwealth of the Bahamas: On 17 October 2018, allowed the respondents’ appeal, set aside the Supreme Court’s orders and dismissed the appellant’s cross-appeal.
3. Supreme Court: Hilton J dismissed the writ of habeas corpus but granted constitutional redress, including orders concerning the appellant’s return, status and compensation.