Following a ruling by the Court of Appeal to uphold a landmark ruling on citizenship, Attorney General Carl Bethel yesterday said the matter must “finally and comprehensively” be addressed by the Privy Council.
The attorney general has said that the government intends to appeal the ruling.
“This is very fundamental,” he said
“It is a simple question really: Which is to prevail, the acknowledged original intent of the founders of the constitution, or whether contemporary concepts and norms ought to prevail over the original intent?”
On Monday, in a three to two decision, the Court of Appeal affirmed a ruling by Supreme Court Justice Ian Winder that every person born in The Bahamas shall become a citizen of The Bahamas at their date of birth if either parent, irrespective of their marital status, is a citizen of The Bahamas.
Winder’s ruling allows children born out of wedlock to Bahamian men and foreign women in The Bahamas to be entitled to citizenship from birth.
Bethel said, “The issue of who is entitled to be Bahamian, like the fundamental clauses in the constitution, is a very fundamental matter.
“This matter would have ended up before the Privy Council irrespective of who would have won in the Court of Appeal. Had the other side lost, they would have taken it. I’m sure the Bahamian people will not accept any judgment on a matter that doesn’t come from the highest court in the land, which is the Privy Council. So it is the government’s intention to appeal the matter.”
He added, “This is a matter that can only be finally and comprehensively addressed by the highest court in the land, the Privy Council.
“So the government does intend to take immediate steps to seek to take this appeal to the Privy Council to have the matter definitively determined.
“You must bear in mind that not only is this a question of original intent, it is also a question of national intent.
“There were two referenda on this issue, each of which, as far as the Bahamian people were concerned, definitively resolved the issue. So we have to see what the highest court has to say on the matter.
“I express no point of view. It has always been the intent of the attorney general’s office to merely have the law clarified by the highest court in the land.”
He said the government will argue, as it did in both the Supreme Court and Court of Appeal, that the constitution be interpreted as originally written.
“We will advance the same positions that we have advanced to date in the Privy Council, that the original constitution, as originally written, as originally supported by the Bahamian people on two occasions, ought to prevail,” he said.
The five respondents in the matter, who are all children of unmarried Bahamian fathers, “each claimed the right to Bahamian citizenship under Article 6 on the basis of their having been born in The Bahamas after 9 July 1973 to a father who was a citizen of The Bahamas at the date of their birth”. They brought separate applications seeking a ruling from the Supreme Court.
However, the attorney general, “resisted” the applications on the basis that “since the respondents’ fathers were unwed at the date of their birth, they were excluded from automatic Bahamian citizenship by virtue of Article 14(1) which, he contended, applies to the interpretation of Article 6 by indirect reference”.
Article 6 of the constitution states, “Every person born in The Bahamas after July 9, 1973, shall become a citizen at the date of his birth, if at that date either of his parents is a citizen of The Bahamas.”
Article 14(1) states, “Any reference in the chapter to the father of a person shall, in relation to any person born out of wedlock other than a person legitimated before July 10, 1973, be construed as a reference to the mother of that person.”
On February 27, 2002, the Ingraham administration staged the first constitutional referendum, which failed.
That referendum covered a broad range of constitutional issues: Voters were asked whether they approve of an independent election boundaries commission; the creation of an independent parliamentary commissioner; the removal of gender discriminating language from the constitution and if children born to Bahamian mothers and foreign fathers should have Bahamian citizenship; the raising of the retirement age for judges and the creation of a teaching commission.
On each question, the “no” vote was overwhelming.
In 2016, the Christie administration held the second constitutional referendum, which was also defeated.
Voters were asked to consider four amendments to the constitution. Amendment three proposed to change the constitution to allow a Bahamian father, who had a child out of wedlock, to pass on his citizenship to his child.