The Tribune

By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

THE Court of Appeal held a rare full-court hearing yesterday to consider Supreme Court Justice Ian Winder’s historic ruling 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.

The case revolves around the interpretation of Article 6 of the Constitution.

Currently, two inconsistent rulings exist on the matter: that of Justice Winder, which was issued in May of last year, and that of former Chief Justice Sir Burton Hall in 2009.

If upheld, Justice Winder’s ruling would have significant implications for citizenship rights.

In his ruling, Justice Winder concluded that “father” in Article 14 (1) of the Constitution is not 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.”

Attorney Franklyn Williams, who represented the government, insisted that the words “either of his parents” in Article 6 clearly refers to either a mother or father and therefore Article 14 (1) must be applicable.

However, Justice Maureen Crane-Scott responded: “Interpretation clause has to be looked at in terms of the part of the Act or the chapter in this case where it is used. You are trying, I would suggest, to force the interpretation given in 14 (1) into the interpretation of the clear words of Article 6 which do not use the words father or mother.”

Justice Jon Isaacs added: “Article 14 (1) speaks about any reference to the father. Where in Section 6 is there a reference to the father? With all due respect Mr Williams, there is a vast difference between a parent, which could be either a mother or a father, and where a section specifically states where reference is made to a father.”

Prodded by Chief Justice Barnett, Mr Williams argued that in determining the intention of lawmakers with respect to the meaning of “parents” in Article 6, similar laws should be considered.

The relevant clauses, he accepted, include the British Nationality Act, which did not allow children born out of wedlock to acquire citizenship, and the Bahamas Nationality Act of 1973 in which legislators did not intend that the word “parent” include a father of a child born out of wedlock and where the law did not permit a child born out of wedlock to acquire citizenship automatically.

Chief Justice Barnett asked: “Is it permissible in construing the Constitution for us to look at those two statutes, the British Nationality Act of 1940 and the Bahamas Nationality Act, is that a permissible form of interpretation of a statute? In other words, is a court in construing a particular statue capable of looking at a statue of a similar nature passed at the time of the legislation in effect or that was in effect the day before that new legislation came into effect?”

“Yes,” Mr Williams responded.

However, attorney Wayne Munroe later countered that the above principle should apply only in similar “orders in council”.

“What we can look at are the constitutions that preceded the Constitution of The Bahamas and the constitutions that came after,” he said. “We produced before Justice Winder and we undertook that exercise and produced just that.

“When one looks at the framers’ intent and you look at those spread of constitutions, the first thing that was clear is that all the pride that we in the colonies take about having worked on our constitutions, they all look strikingly the same, which tells you that they were driven by the common party in all of them, which is the former colonial masters.

“What’s also clear from them, my lord, is when you look at this area of citizenship and you look at the other constitutions, the use of father or mother features broadly across all of them and we say that that informs the correct interpretation, that when one wishes to have a provision like Article 14 bite, you have to actually use the word father. When you are to look in the record of all those constitutions, you will find that when it is intended for this provision to apply, the use of the word parent does not appear, the use of the phrase father or mother (does).”

Justice Winder’s ruling came after Mr Munroe brought cases involving children purportedly born to Bahamian men out of wedlock to Jamaican and Haitian women.

The court has reserved its decision in the matter.