The Tribune

By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

A SUPREME Court judge has ruled that children born out of wedlock to Bahamian men and foreign women are citizens at birth and do not have to wait until 18 to apply for citizenship.

Wayne Munroe, QC, said Justice Ian Winder’s ruling, which was released yesterday, is a game-changer that can affect the status of tens of thousands of people in the country.

He said that if the ruling stands, it would put an end to the bizarre practice of some Bahamian men choosing to adopt their own children to pass on their citizenship.

“The judge has ruled as a matter of law that if your father is Bahamian you are Bahamian by birth,” said Mr Munroe, who argued the case. “A lot of children who were born to Bahamian fathers have been turned around in school and after they turn 18 are told they will now be able to claim their citizenship as soon as they can prove their father is Bahamian. This foolishness in the past about a man having to adopt his own children to get citizenship, all that can now end. Bearing in mind that illegitimacy is high (in the Bahamas), this likely affects tens of thousands of people. There are many we wouldn’t even have given citizenship to after they applied for it at 18.”

Justice Winder’s ruling focuses on whether a reference to “father” in Article 14 (1) of the Constitution is applicable when interpreting Article 6 of the document.

Article 6 says: “Every person born in the Bahamas after 9th July 1973 shall become a citizen of the Bahamas at the date of his birth if at that date either of his parents is a citizen of the Bahamas.”

Article 14 (1) says: “Any reference in this chapter to the father of a person shall, in relation to any person born out of wedlock other than a person legitimated before 10th July 1973, be construed as a reference to the mother of that person.”

Mr Munroe, according to Justice Winder’s ruling, sought a declaration saying that the true construction of Article 6 is that any person born to either Bahamian parent after July 9, 1973 is a citizen at birth. He further sought a declaration that his clients “are born to a Bahamian father and entitled to citizenship pursuant to Article 6 of the constitution” and that “the wording of Article 14 does not affect the rights given under Article 6 in that Article 14 only applies where the word ‘father’ is mentioned in the relevant chapter and does not affect the wording of either parent as set out in Article 6.”

Government lawyers argued that “the clear interpretation of Article 14(1) of the Constitution is that it applies to any provision which is capable of including the father,” Justice Winder noted. They relied on a ruling by former Chief Justice Sir Burton Hall in a case that was previously brought by Mr Munroe.

Justice Winder, ultimately, has departed from the former chief justice’s ruling. In essence, he argues that if drafters of the Constitution wanted Article 14 (1) to apply to Article 6, they would have used the words “father or mother,” not “parents.”

“In my view,” he writes, “it is simply just wrong to seek to apply Article 14(1) to Article 6 as the words father or mother do not appear in it. It seems that in every place where it is intended by Parliament to refer to father and mother in their legal sense, it did so. Father is used in the Constitution in its common law meaning of a legal (and not putative) father, and this must explain why it was not possible for the drafters of the Constitution to use father and mother in Article 6 in place of parents. Parliament must have intended ‘parents’ in Article 6 to have the ordinary grammatical meaning of biological parents.”

The question of whether Bahamian fathers of children born out of wedlock to non-Bahamian mothers could automatically pass citizenship on to their children was one of several raised in the constitutional referendum in 2016 but was rejected by Bahamians.

Mr Munroe said pursuing a ruling like Justice Winder’s has been his mission for about 15 years.

“When Hall ruled against me, it was a child of a Bahamian policeman who couldn’t get citizenship,” he said. “Before we got to appeal, the child got status and the father wasn’t interested in appealing any more. For me it was just a matter of getting another matter in which the same issue could be canvassed.

The applicants in the current case include children said to have been fathered by Bahamian men out of wedlock to Jamaican and Haitian women. The case has been adjourned to July to consider proof that the fathers of the children are indeed Bahamian men.