The Tribune

By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

THE Court of Appeal has denied the government’s application to stay the effect of its ruling affirming Supreme Court Justice Ian Winder’s landmark decision on citizenship rights in The Bahamas.

The government wanted the ruling stayed until the Privy Council resolves the matter amid concern that people will use the ruling to claim citizenship in the meantime.

Court of Appeal Justice Jon Isaacs, who wrote the ruling which was released yesterday, noted that when the higher court affirmed Justice Winder’s ruling that children born out of wedlock to Bahamian men are citizens at birth regardless of the nationality of the mother, the court never required any money be paid in the case or any act be performed.

Justice Isaacs said: “The condition precedent necessary for the invocation of section 6 is absent. As a result of its absence, there is no basis for the court to insert itself into the process moving toward a hearing by their lordships of Her Majesty’s Privy Council.”

To convince the judges of a need for a stay, government lawyers filed affidavits from Deputy Permanent Secretary Kingsley Smith, Donnette Williamson and Parliamentary Registration Department employee Geoffrey McPhee. They stated that people have visited the Parliamentary Registration Department seeking to apply for citizenship since the major ruling.

“If these affidavits were filed to convince us that due to the court’s judgment, upholding the decision of Winder, J, the floodgates were opened to a tide of applications for registration as Bahamians, for Bahamian passports and to be registered to vote, they are abject failures,” Justice Isaacs said.

“They evince no more than the usual level of interest members of the public may have in a case of some public importance; and cannot give rise to a belief that unless somehow checked, great damage will be done to the polity. Moreover, in the hearing before us, Mr Williams admitted that there had ‘not been a flood or a deluge of applications or claims’ resulting from our decision.”

In exchange for granting the stay application, the government offered not to deport people who claim Bahamian citizenship under Article 6 of the Constitution.

However, Justice Isaacs said: “I do not view this as a viable option as it opens the door for everyone apprehended or approached by members of the Immigration Department or any other agency of the state concerned with the regulation of immigrants in the country, to merely state that they lay claim to citizenship pursuant to Article 6 of the Constitution, to cause any investigation into the legitimacy of their claim to be delayed; and to allow otherwise undeserving persons to continue to reside in the country without let or hindrance.

“However, the offer that ‘the government of The Bahamas, is prepared to give an undertaking, pending the determination of this appeal, not to deport any person claiming under Article 6’ and the declaration of the court, the interpretation of Article 6 is noted; as is such forbearance as the appellant is willing to exercise in light of this court’s judgment.”

Attorney Wayne Munroe represented several plaintiffs in the case who are seeking citizenship under Article 6 of the Constitution. That provision 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.”

Justice Winder and the Court of Appeal’s recent ruling reverses the traditional interpretation of Article 6, which was that Article 14 (1) is applicable when interpreting it. 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.”

The matter has not been completed at the Supreme Court. Justice Winder adjourned the case pending the result of various appeals of his legal finding. He still has to consider evidence related to paternity.

Justice Isaacs said: “Winder, J’s interlocutory ruling, does not require the appellant to do anything. The allegation that there may be thousands of persons who may be affected by Winder, J’s decision which was upheld in this court, does not set off any alarm bells since anyone seeking to avail themselves of Article 6 still face the hurdle that is presently being addressed by Winder, J in the second act of the trial.

“In my view, Winder, J has effectively imposed a stay of the proceedings in his court pending such ‘further representations’ that may be made. I understand the judge’s terminology to mean and to include appeals against the legal position he established. To be clear, Winder, J has not yet made any of the declarations sought by the respondents; and the majority judgment of the court merely affirmed his interlocutory understanding of the import of Article 6. Any declaration Winder, J may ultimately grant will be subject to the outcome of the appeal the appellant is preparing to launch before their lordships in the Privy Council. The case before Winder, J has yet to conclude.”

Attorney General Carl Bethel said: “The Court found that the government had not been ordered to do anything by Justice Winder (or by their Ruling) and they stayed any further proceedings before Justice Winder pending the decision of the Privy Council. Hence, at the end of the day the status quo is preserved.”