Bahamas to challenge court ruling granting automatic citizenship to all children

NASSAU, Bahamas, CMC – The Bahamas Government says it will file an appeal with the London-based Privy Council after the Court of Appeal 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.

Attorney General Carl Bethel said that the ruling will be appealed based on the division among the five judges who heard the case.

“The Court of Appeal was clearly divided on the matter. The order now demands a full appeal to the Privy Council so it can be fully and authoritatively decided,” Bethel said, adding that the ability of all Bahamian men to automatically pass citizenship to their children “remains an open question” despite the new ruling.

Justices Maureen Crane-Scott, Jon Isaacs and Roy Jones upheld Justice Ian Winder's ruling while Court of Appeal President Sir Michael Barnett and Justice Milton Evans dissented.

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. 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,” he said.

In 2016, Bahamians in a referendum rejected the idea of amending the Constitution to allow Bahamian fathers of children born out of wedlock to non-Bahamian mothers to automatically pass citizenship to their children.

Legal observers said that 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.

According to the article, “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.”

However, Article 14 (1) states: “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.”

Winder's ruling last year contradicted the ruling former Chief Justice Sir Burton Hall made in 2009 when attorney Wayne Munroe, who represented several children born out of wedlock to Bahamian men whose mothers were either Jamaican or Haitian, first brought the case.

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.

“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,” she wrote in support of the appeal.

But the lawyers representing the Office of the Attorney General argued that 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.”

But Crane-Scott 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, Munroe supported his and Winder's conclusions with a comparative analysis of corresponding provisions in the constitutions of other commonwealth countries.

In his dissenting view, Barnett 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.

“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 added.

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