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COA dismisses application for stay

The Court of Appeal yesterday dismissed an application by the government seeking a stay of the court’s recent landmark ruling on citizenship.

On June 21, the court affirmed a ruling by Supreme Court Justice Ian Winder that every person born in The Bahamas shall become a citizen of The Bahamas at 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.

The five respondents in the appeal to the Court of Appeal – 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”.

While the government was granted leave to appeal the matter to the Privy Council, it sought a stay of the ruling, under section six of The Bahamas Islands (Procedure in Appeals to Privy Council) Order, 1964, so that the status quo remains the same.

But Court of Appeal Justice Jon Isaacs said that the government’s decision to use section six “is futile”.

Under section six, the court is empowered, among other things, to issue a stay “where the judgment appealed from requires the appellant to pay money or do any act”.

Isaacs said, “The majority judgment of the court did not require the payment of any money nor did it require the doing of any act.

“Thus, the condition precedent necessary for the invocation of section six is absent. As a result of its absence, there is no basis for the court to insert itself into the process moving toward a hearing by their Lordships of Her Majesty’s Privy Council.”

He said the government then altered its position to include an argument that their application for a stay was made pursuant to section 5(b) of the order. It filed three affidavits in support of this position.

Those affidavits indicated that an official from the Passport Office and an official from the Parliamentary Registration Department received inquiries from people wishing to either apply for a passport or register to vote because they stood to benefit from the court’s ruling on Article 6.

“If these affidavits were filed to convince us that due to the court’s judgment, upholding the decision of Winder, J, the floodgates were opened to a tide of applications for registration as Bahamians, for Bahamian passports and to be registered to vote, they are abject failures,” Isaacs said.

“They evince no more than the usual level of interest members of the public may have in a case of some public importance; and cannot give rise to a belief that unless somehow checked, great damage will be done to the polity.”

Isaacs said the government’s suggestion that it is prepared to halt deportations and detention of people who claim to be Bahamian citizens under the court’s ruling is not a “viable option”.

“… It opens the door for everyone apprehended or approached by members of the Immigration Department or any other agency of the state concerned with the regulation of immigrants in the country, to merely state that they lay claim to citizenship pursuant to Article 6 of the constitution, to cause any investigation into the legitimacy of their claim to be delayed; and to allow otherwise undeserving persons to continue to reside in the country without let or hindrance.”

He continued, “As in this case, Winder, J’s interlocutory ruling, does not require the appellant to do anything. The allegation that there may be thousands of persons who may be affected by Winder, J’s decision which was upheld in this court, does not set off any alarm bells since anyone seeking to avail themselves of Article 6 still faces the hurdle that is presently being addressed by Winder, J in the second act of the trial, to wit, the exercise alluded to by him at paragraph 39 of his judgment.”

That paragraph in Winder’s 2020 ruling reads: “In the circumstances therefore, having established the legal position, rather than conclude the application with a decision which may be adverse to either side, who may wish to make further representations, in light of my legal finding, I will adjourn this matter and give directions as to how further representations may be made and/or evidence may be adduced, if necessary, prior to a final determination on the evidence.”

Isaacs said Winder effectively “imposed a stay of the proceedings in his court pending such further representations that may be made”.

“I understand the judge’s terminology to mean and to include appeals against the legal position he established,” he said.

“To be clear, Winder, J has not yet made any of the declarations sought by the respondents; and the majority judgment of the court merely affirmed his interlocutory understanding of the import of Article 6.

“Any declaration Winder, J may ultimately grant will be subject to the outcome of the appeal the appellant is preparing to launch before their Lordships in the Privy Council.

“The case before Winder, J has yet to conclude.

“In the premises, I am not satisfied that the appellant has demonstrated that we ought to grant a stay of our judgment under sections 6 or 5(b) of the order. I would dismiss the application for a stay of the effect of our judgment.”

However, Isaacs noted that Wayne Munroe, QC, who represents the five respondents, signaled his preference that the action before Winder continue.

“This seems to foreshadow his intention to move Winder, J to proceed with the case involving his clients,” he said.

“I hold the view that the continuation of the case should await the determination of the appeal to the Privy Council. Thus, to that extent I am willing to avail myself of the power contained in section 5(b) of the order, to wit, to make such order and to give such other directions as he shall consider the interests of justice or circumstances of the case require to direct that the proceedings before Winder, J be stayed pending a determination of the appeal to the Privy Council or such other order as may be made by the court.”

Costs were awarded to the respondents.

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Travis Cartwright-Carroll

Travis Cartwright-Carroll is the assistant editor. He covers a wide range of national issues. He joined The Nassau Guardian in 2011 as a copy editor before shifting to reporting. He was promoted to assistant news editor in December 2018. Education: College of The Bahamas, English

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