By RASHAD ROLLE
Tribune Senior Reporter
rrolle@tribunemedia.net
THE Court of Appeal has affirmed a landmark Supreme Court ruling allowing Bahamian men to automatically pass citizenship to their children, regardless of whether their child is born out of wedlock to non-Bahamian mothers.
However, Attorney General Carl Bethel said yesterday that the ruling will be appealed to the Privy Council, citing the division among the five Court of Appeal judges who heard the case.
Justices Maureen Crane-Scott, Jon Isaacs and Roy Jones affirmed Justice Ian Winder’s ruling while Court of Appeal President Sir Michael Barnett and Justice Milton Evans dissented from their view.
Mr Bethel said yesterday that the ability of all Bahamian men to automatically pass citizenship to their children “remains an open question” despite the new ruling.
“The Court of Appeal was clearly divided on the matter,” he said. “The order now demands a full appeal to the Privy Council so it can be fully and authoritatively decided.”
Nonetheless, attorney Wayne Munroe, who brought the case, said the practical implications of the ruling now have immediate effect.
“I imagine it’s in the tens of thousands, the number of people affected, because it’s going all the way back to 1973,” he said. “The law of the land is what the ruling says. Anybody whose father is Bahamian should go apply for their passport and their voter’s card. Because that’s from the Court of Appeal, every Supreme Court judge will be bound to rule in accordance with it.”
The prospect of amending the Constitution so Bahamian fathers of children born out of wedlock to non-Bahamian mothers could automatically pass citizenship to their children was one of several possibilities Bahamians rejected in the 2016 constitutional referendum.
Legally, the case revolves around the interpretation of Article 6 of the Constitution and whether the reference to “father” in article 14 (1) of the document is applicable when interpreting article 6.
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 if 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.”
Justice Winder’s ruling last year contradicted the ruling former Chief Justice Sir Burton Hall made in 2009 when attorney Wayne Munroe first brought a similar case.
Mr Munroe represented several children born out of wedlock to Bahamian men whose mothers were either Jamaican or Haitian.
Justice Crane-Scott said the result of “forcing” Article 14 (1) into the “clear language of Article 6 is to give Article 6 a strained construction which the framers never intended.”
She wrote: “Read in the manner contended for by the appellant, such a construction runs counter to the fundamental rights protections of the Constitution itself, affording different treatment to persons born in the Bahamas simply on the basis that they were born out of wedlock. I therefore agree with the learned judge that such a construction would result in the disentitlement to automatic citizenship of an entire class of persons born on Bahamian soil to Bahamian men, merely because of the marital status of their parents at the date of their birth.”
Lawyers for the Office of the Attorney General argued that Justice Winder erred and misdirected himself in law by deciding that the correct interpretation is to “preclude any reference to Article 14(1) by indirect reference to Article 6.”
Justice Crane-Scott, however, said their grounds for appeal “failed to particularise any specific error or misdirection of law anywhere in the decision capable of showing that the conclusions identified in grounds 1 and 2 were plainly wrong.”
She noted that among other things, Mr Munroe supported his and Justice Winder’s conclusions with a comparative analysis of corresponding provisions in the constitutions of other commonwealth countries.
“Mr Munroe referred to the Privy Council decision in Bowe and Davis v The Queen where in construing the Constitution of the Bahamas, the board indicated, inter alia, that the most important consideration is that those who are entitled to the protection of human rights guarantees should enjoy that protection,” she wrote. “Adopting the same approach, Mr Munroe submitted that Winder J was plainly correct to have adopted a liberal and purposive approach to the interpretation of a right and status conferred by Article 6 of the Constitution itself.”
For his part, Sir Michael wrote that while he accepts that a liberal construction of the Constitution should be adopted when dealing with provisions relating to fundamental rights and freedoms, such approach is not necessary when interpreting other parts of the document.
He wrote: “In construing Article 6, the role of the court is to determine the intention of Parliament. The intention is ascertained by looking at the language used, the purpose of the statute and taking into account certain canons of construction which have been applied by the courts over the years and which Parliament must be taken to have been aware of when it enacted the legislation.
“In my judgment in 1973, it was not the intention of the framers of the Constitution to give the father of a child born out of wedlock the ability to give his citizenship to that child born out of wedlock,” he wrote.
Comments
M0J0 3 years, 6 months ago
Guess if the AG don't like it it has to change ay
K4C 3 years, 6 months ago
The Bahamas is on the way to a passible total loss of it's once great tourist industry and all these politicians are doing is spewing horse$hit and birth rites
tribanon 3 years, 6 months ago
The Constitution of The Bahamas is quite literally being shredded by the present majority of weaker legal minds within our judiciary.
We saw pretty much the same thing happen in our public education system once the better educators had either been forced to leave our country by the likes of Loftus Roker, or forced to find another career in order to be able to feed and clothe their families, or eventually retired from teaching.
Our country is already very much over populated as it is with a most serious illegal immigrant problem to boot. Unconstitutionally allowing Bahamian men to automatically pass citizenship to their children, regardless of whether their child is born out of wedlock to non-Bahamian mothers, all but assures many thousands of bastard children born in other countries around the world, most of whom are now adults, will be asserting that their natural father is (was) a Bahamian and, accordingly, this now gives them the right to live, work and receive social welfare benefits in The Bahamas as Bahamian citizens.
Right now the Privy Council in the UK is well known to have a very leftist leaning 'human rights type bent' to it which means yet another nail could be hammered in the coffin of The Bahamas. And we can be rest assured that the poorest of the poor in the much lesser developed countries will be using this horribly misguided Appeals Court ruling to try gain entry to our country as quickly as possible.
As if our country's ship wasn't already grossly overloaded and steadily sinking!
DWW 3 years, 6 months ago
Wow! a little prejudice maybe?
tribanon 3 years, 6 months ago
OK....but only a tad so.
newcitizen 3 years, 6 months ago
This country is a sinking ship because there are more people with uneducated views like yours than the opposite. All the people with sense and brains are taking off for better lives in other countries, while we debate about whether children born here to Bahamian parents can be citizens.
Economist 3 years, 6 months ago
You are correct. The brain drain of our educated is alarming.
They have gone because they see the advantage of living in the real world of the 21st Century and not the current Bahamas stuck in the old out dated thinking of the19th Century.
joeblow 3 years, 6 months ago
... regarding citizenship, the "father" of a child is always an assumption that should be undergirded by DNA testing for paternity!
sheeprunner12 3 years, 6 months ago
This is a back door way to constitutional reform in 242 ...... the citizens have abdicated their power to the courts
newcitizen 3 years, 6 months ago
Or, the court is actually protecting the right of Bahamian citizens.
tribanon 3 years, 6 months ago
Dream on!
bogart 3 years, 6 months ago
Weeeeell mudda tek sic,...tens of thousands...should apply for their passport and voter's card....Looks like plenty, plenty, plenty more chairs for citizens and accompanying children, their children, everybody grandchildren attendees for few weeks away upcoming Independence celebrations.
Muddoes dred, looks like there will to be more chairs, seating arrangements on Fort Charlotte as tens of thousands more wearing their Bahamian colours with pride and waving their flags behind the top Bahamian Govt Officials, Bahamian dignitaries, distinguished guests.
Errybody...singing in toppest ceremony of annual Celebration of National Independence of the sovereign and independent nation. Looking forward to looking at the tv monitor at site past film clips as the Union Jack flag is lowered in reverence an the Bahamian flag rises in steadfast dignity an pride, our beloved sovereign an independent nation.
bogart 3 years, 6 months ago
.......er, and to read therafter of the Bahamian Officials going back across the ocean to the former colonial rulers after all dese years.... to find out who the Bahamian citizen is.
tribanon 3 years, 6 months ago
That's a good one!
TalRussell 3 years, 6 months ago
So far the constituents across all we realm's 39 electoral constituencies are protected in knowing that under the rule of Thee Mr. Minnis. em's, has outright denied AG Comrade Carl Wilshire even the slimmest chance that he'll come doorknocking as a candidate under the red party's banner.
The office of the prime minister has issued a stern warning to all constituents: Should AG Comrade Carl Wilshire be spotted, physically doorknocking - you ARE** to report his sighting - immediately to the party's Mackey Street's General Election Command Headquarters," yes?
DWW 3 years, 6 months ago
Is it time to clean up on Aisle 6 at the Department of Immigration? 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 if either of his parents is a citizen of the Bahamas.”
tribanon 3 years, 6 months ago
Not so fast; no clean-up on Aisle 6 is warranted.
Chapter II, Article 8 of our Constitution states: "A person born outside The Bahamas after 9th July 1973 shall become a citizen of The Bahamas at the date of his birth if at that date his father is a citizen of The Bahamas..."
It really doesn't take a genius to figure out the knock-on-effect on Article 8 of our Courts' very misguided interpretation of Article 6 when it comes to children born abroad out of wedlock to non-Bahamian mothers.
The Constitution is indeed being 'unconstitutionally' re-written by the Courts behind the backs of the Bahamian people.
newcitizen 3 years, 6 months ago
I fail to see what the issue is, what you quote as Article 8 is exactly what the court ruled. There is no requirement for wedlock, you are simply adding that in yourself. So every person born in the Bahamas with, at least one Bahamian parent is a Bahamian, and if born outside of the Bahamas, if the father is Bahamian. Again, no mention of wedlock.
Maybe you should be agruing that women should be equal citizens to men, because the second part makes a woman less of a citizen of the Bahamas than a man.
But you'd just rather go on with your bigotry.
tribanon 3 years, 6 months ago
You're just not the kind of person I consider worthy of pro bono legal advice. lol
Economist 3 years, 6 months ago
Children born to unwed mothers have always been given citizenship. Indeed we as a Christian have always rewarded her adultery and punnished the Bahamian mother who dared to marry a foreigner and have their child outside The Bahamas by denying it to those children. Where have you been???
tribanon 3 years, 6 months ago
Your sarcasm here is warranted but many may not appreciate its significance.
bogart 3 years, 6 months ago
The final yea or nay on baby citizenship must be part on the mother ..... who for 9 months have to endure some the following..... heartburn,... morning sickness,... bleeding gums, ...constipation, ...fainting, ...varicose veins, ...vaginal discharges,...backpains,...fevers,...tiredness,...urge to go to bathroom visits,...trying to fit in car, etcetc and the wanting to eat icecream and sardines in the middle of the night. This should be moreso specially if the male who impregnated the female out of wedlock is not around.
No male allegedly being the father of the baby being carried for all the months of pregnancy by female and wid back pains, vaginal discharges, above mentioned etc should have male, the leading figure more than that of the carrying pregnant unwed mother.
tribanon 3 years, 6 months ago
Sorry to hear you had such a difficult pregnancy. lol
bogart 3 years, 6 months ago
You should talk to some of the Medical doctors on some more of these challenges females go through in this nation. lol
TalRussell 3 years, 6 months ago
The no comment code of solo and private practice doctors, aren't inclined them be publicly seen and heard, speaking negatively of their colleague's governance, yes?
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