The Tribune

By TANYA SMITH-CARTWRIGHT

tsmith-cartwright@tribunemedia.net

ATTORNEY General Carl Bethel stressed yesterday the law has not changed regarding citizenship despite the Court of Appeal affirming a landmark ruling.

Mr Bethel told the Senate people were showing up at government departments demanding voter’s cards based on the judgement, however he said the Minnis administration will uphold the status quo until the matter is decided in the Privy Council.

However, leader of opposition business in the Senate, Fred Mitchell interjected and said the Court of Appeal’s ruling should be interpreted as the law of the land until the government applies for a stay of the ruling.

On Monday, the Court of Appeal upheld an historic Supreme Court ruling that children born out of wedlock to foreign women and Bahamian men are automatically citizens, regardless of the nationality of the mother.

Before this, the government had sought to appeal a ruling by Supreme Court Justice Ian Winder handed down in May 2020 over the true interpretation of Article 6 of the Constitution.

The appellate ruling, which came in a three to two decision, has dismissed the government’s appeal and awarded costs to the respondents.

“Madam President, I now have to address another issue that is arising,” Senator Bethel said in the Senate. “We all know that there was the recent decision of the Court of Appeal by a three to two majority on the question of the right to citizenship.

“I am now advised that persons are presenting themselves, as of yesterday and even today, at the Parliamentary Registration Department demanding the right to be registered to vote. This is my information. Let me say as I said to the press yesterday, this did not make the remarks in the newspaper but thankfully it got covered from the former Attorney General Sean McWeeney saying the same thing.

“I said that if we were to lose at the Privy Council at that time we would then be required to make changes to domestic law. In other words, nothing has changed as a result of the ruling, because the matter is still a matter of contest. One of the things that is required is, of course, that we would go to the Privy Council for the matter to be settled, but pending that, there is no change in Bahamian law.”

He said there is no possibility of a change, at least until September when the House of Assembly meets again and also said there is no likelihood that there will be any change at all without a definitive ruling from the Privy Council.

“If that ruling goes a certain way, we would have to deal with whatever the consequences are,” he continued. “Until that time, the matter is a contested issue and we would urge all persons who would wish to have the benefit of a judgement before the matter is settled as law to hold off and wait for the final court’s verdict on this matter because the law has not changed.

“So for example, one cannot prove paternity for the purpose of claiming citizenship based on the Status of Children’s Act because the Status of Children’s Act specifically states that it is not to be used in determining any question of citizenship. That is the law of the Bahamas and it has not changed.”

He advised people who fall in the category in question to be patient and also that government agencies understand what is going on.

“I would advise all those persons who are seeking to avail themselves of the ruling of the Court of Appeal to be patient,” Senator Bethel said. “Let us await the full determination of the highest court in the land which the matter is now being referred and we will see the final statement as to what Bahamian constitutional law is on this matter will be when the Privy Council issues its ruling.

“Until that time, I advise calm and patience. And, I also advise all arms of the government that the law affecting citizenship for persons born out of wedlock to a Bahamian man has not changed because the Status of the Children’s Act still is not to be used and cannot be used for the purpose of determining a right to citizenship.

“If the Privy Council were to rule in favour of the applicants being the government of The Bahamas, there will be no change to the law. If they were to rule otherwise, at that point there would have to be changes in domestic law. Those changes have not yet been made, so please, I advise all government agencies to obey Bahamian law in this matter.”

Just then Senator Mitchell was on his feet with his interpretation of the Court of Appeal’s ruling and challenged the attorney general.

“My understanding of the Court of Appeal Act is that once the Court of Appeal pronounces that is actually the law of the Bahamas until the government takes a step to stay. Correctly speaking, the law changed when the Court of Appeal ruled,” Mr Mitchell said.

Mr Bethel responded, “Unfortunately the statute law has not changed. The issue is there is an entitlement … that’s an entitlement to apply or you are entitled at birth, according to the Court of Appeal’s ruling, but the law has not changed.

“We have not yet changed the statute law of the Bahamas and that law will continue to prevail until such time that the law is clarified. We are, on the attorney general’s side, taking steps right now to apply for a stay and also make our application to the Privy Council.

“These things have to be done in a measured way and in a lawful way. And, we are taking steps to do them on the basis of urgency.”

However, Mr Mitchell insisted on his point.

“I thought the case was about Article 6 and the interpretation of the parents,” Senator Mitchell said. “So once the court pronounces that parent, meaning either parent, then the law changes because the Court of Appeal binds every other court.”

Senator Bethel responded, “So how do you prove that someone is a parent? If they are a male then it’s through the DNA test and under the Status of Children’s Act that cannot be used for the purposes of citizenship at this time.”

Senator Mitchell interrupted Senator Bethel saying, “But with respect, the Status of Children’s Act will not apply because as soon as the court pronounces, unless there is a stay, it changes automatically. Until you get a stay then he is a Bahamian citizen.

“It changes automatically. All you need is the fellow from Grand Bahama to rush up the road and say ‘you are a citizen.’ So I say act quickly if that’s what you need to do. Do it and do it quickly.

“Once the court says Article 6 has changed the law the parent means parent whether married or otherwise, the law has changed and a person can go to the Passport Office and get a passport. So you need to get a stay. You have to get a stay. I just want to make that clear,” Mr Mitchell said.

Senator Bethel noted that his office was in fact applying for a stay. He assured Senator Mitchell that he understood what he was saying, but insisted that the law had not changed.

Senator Mitchell insisted otherwise and said people are now entitled to their certificate of citizenship. Meanwhile Senator Bethel resigned himself to the fact that they both disagreed on the subject and asked that they move on.