The Tribune

By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

THE Office of the Attorney General on Friday filed documents asking the Court of Appeal to stay Supreme Court Justice Ian Winder’s consequential ruling on citizenship rights and to grant leave for the ruling to be appealed to the Privy Council.

Kingsley Smith, a lawyer at the Office of the Attorney General, filed an affidavit in support of the application for leave.

This comes after the Court of Appeal, in a three to two decision last week, affirmed Justice Winder’s ruling that children born in the Bahamas out of wedlock to Bahamian men are citizens at birth, regardless of the nationality of their mother.

It is thought that if the ruling stands, it will have major implications for access to citizenship in the Bahamas and could affect the status of thousands of people.

Last week, Attorney General Carl Bethel said people turned up to the Parliamentary Registration Department to register to vote on the basis of the ruling. He pleaded with people to be patient and wait until the matter has been dealt with at the Privy Council.

In its new submissions, the Office of the Attorney General said the majority members of the Court of Appeal erred in numerous ways with its ruling.

Government lawyers said: “The majority of the Court of Appeal erred in law in holding that Parliament only intended Article 14(1) to apply to articles in which direct reference is made to fathers. In accordance with the canons of construction and the principles of statutory interpretation, it is clear that this provision must apply where any reference is made to a father in the provisions of Chapter II of the Bahamas Constitution, whether direct or indirect. “More specifically, whether the reference in Article 14(1) of the Constitution to ‘father’ could not be read to apply to the interpretation of the word parent in Article (6).

“The majority of the Court of Appeal erred in law in affording too much weight to authorities where the facts indicated that their constitutional framework are significantly distinguishable from the instant case and therefore misinterpreted the scope of Article 6 and Article 14(1) of the Bahamas Constitution.

“The majority of the Court of Appeal erred in failing to give sufficient weight to the Status of Children Act, 2002 which acknowledges the existence of the rule of construction that words of relationship signify only legitimate relationships and moreover, the Act preserves the provisions of the Constitution as it relates to citizenship, as noted by honourable President Justice Sir Michael Barnett in his dissenting decision.

“The majority of the Court of Appeal erred in applying a broad liberal construction of the Bahamas Constitution in their determination that Article 14(1) did not apply to Article 6 of the Bahamas Constitution.

“The majority of the Court of Appeal erred in law in misapplying or not putting sufficient weight to the canons of construction and/or the principles of statutory interpretation when construing what the true intention of Parliament was as it relates to the use of the word parents in Article 6 of the Bahamas Constitution.

“The majority of the Court of Appeal erred in law and fact in failing to give any weight to what was said in Fisher that ‘In Nationality Acts, which provide for acquisition of nationality by descent, the assumption is a strong one that ‘child’ means legitimate child,’ as noted by the President Justice Sir Michael Barnett in his dissenting decision.

“The majority of the Court of Appeal erred in not recognising the intention of framers of the Bahamas Constitution in not giving the right to citizenship at birth to every person born in the Bahamas after 9th of July 1973, having regard to the Bahamas Nationality Act which came into force on the 10th of July 1973.

“The majority of the Court of Appeal erred in not giving weight to the concept of legitimation in determining the intention of Parliament in 1973, and more specifically, the concept of legitimation that meant that the male in child could only become legitimated by the father marrying the mother of the child as noted by Justice Milton Evans in his dissenting decision,” the application filed by the government states.

Attorney Wayne Munroe, QC, who represented the respondents in the citizenship case which sparked the ruling, is not expected to oppose the government’s attempt to get leave to appeal the judgement, however he does not think the Attorney General’s Office should receive a stay.