Though Attorney General Ryan Pinder said in the Senate in June 2022 the government would advance legislation to allow Bahamian men and women to pass on citizenship in all circumstances by the end of last summer, he said yesterday no bill will be brought before the Privy Council rules on whether the constitution provides an automatic right to citizenship at birth to the children born out of wedlock to Bahamian fathers and foreign mothers.
Up to the point of a landmark ruling of Supreme Court Justice Ian Winder in 2020, the constitutional interpretation had been that those children had no automatic right.
The Privy Council heard arguments on the issue on January 17.
Asked yesterday about the government’s promised citizenship bill, the attorney general said, “What we have decided, because as you would know there’s a Privy Council matter that was recently argued on this matter and it’s only appropriate that we allow the high court of the land to have their review of something as important to the national interest as citizenship before the government is in a position to advance the legislative regime.
“That would be the appropriate thing to do and so we await the court decision.”
After the Court of Appeal affirmed Winder’s ruling in a 3-2 decision, Carl Bethel, who was attorney general at the time, said the matter must “finally and comprehensively” be addressed by the Privy Council.
“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?” Bethel said.
There was a change in government in September 2021.
In March 2022, Pinder said the government will continue the appeal.
“The government decided to appeal the ruling as the nature of the decision requires the ultimate court to make a determination,” Pinder said.
“The government continues to develop citizenship legislative proposals for the Cabinet to consider. Until a decision is made whether to alter the ruling or verify the ruling through legislation, the appeal will continue.”
Speaking in the Senate in June 2022, he suggested the citizenship bill was being finalized.
“… We will advance, by the end of the summer, a piece of legislation regarding citizenship that in law will create equality between men and women when it comes to citizenship matters in this country,” Pinder said.
“[That is] something that has been impossible to attain through referenda.
“… We have the strength and the bravery to do it through legislation and bring it to this honorable place, to bring the equality that the former FNM administration shied away from over and over and over again.”
In a 2016 referendum, voters rejected proposed changes to the constitution that sought to address the ability of Bahamians to pass on their citizenship to children and spouses.
A similar exercise in 2002 was also rejected.
If the Privy Council upholds the decision of the lower court, children born out of wedlock to Bahamian men and foreign women would no longer have to wait until they are 18 to apply for citizenship.
It is not know how many people would be impacted by such a ruling, but it is understood that over the years, many such children have been granted citizenship after applying as adults.
The government’s citizenship bill is expected to address other citizenship issues, including granting automatic citizenship to the children born abroad to married Bahamian women and their foreign husbands.
Whenever the bill is brought, assuming it is brought, it is likely to attract controversy as citizenship matters very often do in The Bahamas.
The government would likely face criticism about trying to effect constitutional change through the back door, something it has already assured it is not seeking to do.
Last April, former Attorney General Sean McWeeney, who chaired the last Constitutional Review Commission, which reported in 2013, noted that the constitution was never intended to exhaustively provide for all of the circumstances in which you can obtain Bahamian citizenship.
“It dealt with certain special categories which were rooted in pre-existing entitlements and they wanted to make sure that those categories of persons were properly provided for, but there are a whole slew of other categories that were never intended to be provided for in the constitution; and that’s why we have always had a Nationality Act since we were independent to deal with the circumstances under which citizenship can be acquired otherwise than by reference to the constitution,” McWeeney said.
While the citizenship law would not “change” the constitution, it would essentially have the same effect as constitutional reforms, though any future administration could change the law.
But Pinder said last year, “I don’t think there would be a future government who would change that law to impose inequalities of citizenship upon Bahamians. I mean, if they do, they should be voted out right away.”
Former Prime Minister Hubert Ingraham has said his government tried to permanently bring gender equality to citizenship in The Bahamas.
He said this attempt, which involved proposed constitutional changes, was “the hard way” of seeking to bring this change.
Ingraham said he is confident that Prime Minister Philip Davis will take “the easier way and just do it by legislation”.