National Review

‘Jury is still out’

McWeeney: Status quo will maintain pending Privy Council appeal on citizenship issue 

The Court of Appeal decision to uphold a landmark 2020 Supreme Court ruling that every person born in The Bahamas shall become a citizen of The Bahamas at birth if either parent, regardless of marital status, is a citizen is likely to have far-reaching implications if the Privy Council agrees on appeal.

But former Minister of Immigration A. Loftus Roker, one of only six surviving signatories of our constitution, said yesterday it was never the intent of the framers for children born in The Bahamas to unmarried foreign women to have automatic Bahamian citizenship.

Roker, now 85, said when citizenship issues were being discussed ahead of the 1973 constitution, one concern was that at the time it was not easy to prove paternity, unlike today when DNA testing is common. As such, he said, the framers wanted to safeguard Bahamian citizenship and guard against it being given out willy-nilly.

“That was the most difficult part of it,” he told National Review. “We know who the mother was. You were born to the mother so there was no argument about who the mother was, but the question was who the father was; that was the problem.”

Roker said allowing automatic citizenship to children born to unmarried foreign women in The Bahamas would have opened the door too wide on citizenship.

Acknowledging that much has changed since ‘73, Roker said, “If you can prove it by DNA, then fine. I have no problem with that.”

He believes there is a great deal of people who will now claim automatic citizenship as a result of the new court decision.

The ruling of the Court of Appeal, handed down on Monday, was a three to two decision. 

Justices Stella Crane-Scott, Jon Isaacs and Roy Jones ruled to uphold the Supreme Court ruling of Justice Ian Winder while Court of Appeal President Sir Michael Barnett and Justice Milton Evans gave dissenting rulings.

The justices considered Winder’s departure from a previous decision on the issue by former Chief Justice Sir Burton Hall, who ruled that children born out of wedlock could only inherit citizenship through their mother.

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, 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.

STATUS QUO

Wayne Munroe, QC, who represented them, said on Monday that anyone who was born in The Bahamas out of wedlock to a Bahamian father and foreign mother should now go and apply for their Bahamian passport.

Given that the attorney general has announced the government’s intent to appeal the ruling to the Privy Council, Sean McWeeney, QC, who headed the last Constitutional Commission, which reported in July 2013, said the “jury is still out” on this important constitutional matter.

“This case is definitely going to go to the Privy Council, definitely. It’s crying out for that really because it’s a three-two decision,” said McWeeney, a former attorney general. “First of all, it’s very rare to have a full panel of the Court of Appeal sitting, five judges, but to have a split decision like this, three-two, shows that it really needs definitive judgment.”

He said the government cannot yet entertain any “mad rush” for citizenship as a result of the Court of Appeal ruling. 

“Once the government indicates definitively that it is going to appeal, which it pretty much is forced to do, that means the status quo is going to be maintained,” McWeeney said. “No government is going to consider any applications on the basis of the Court of Appeal’s ruling knowing that that decision could be reversed by the Privy Council.”

Given the constitutional gravity of the issue, he said the matter would likely have ended up before the Privy Council even if it had gone the other way.

“It’s one of those cases where you can’t say either side is fundamentally, transparently, glaringly wrong,” McWeeney said.

“There are compelling arguments to be put on either side. I can tell you that when the constitutional commission dealt with the matter, we had the same kind of internal divisions on it. This is not a unanimous view by any means. We spent a lot of time discussing this particular issue. And so, the fact that you have this kind of division at the Court of Appeal level mirrors to a large extent the kind of internal divisions we had when the commission dealt with it.”

Noting that there are “powerful dissenting opinions” in the new ruling, Attorney General Carl Bethel told us “the law is still not clear” and a Privy Council appeal is definitely coming.

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.”

In its 2013 report, the McWeeney Commission said it was of the view that Article 6 is not discriminatory.

“It adopts a hybrid position between acquisition of citizenship based on birth in territory and descent, and the combination of each grants automatic entitlement at birth,” the commission said.

“However, it seems to have been susceptible to an interpretation that it is discriminatory in its effects. This results from what the commission considers – and with the greatest respect for the courts – to be the erroneous interpretation of the word ‘parents’ in its provision to include an unmarried Bahamian mother but not an unmarried Bahamian father.”

The commission said it seems fairly clear that the intention of Article 6 is to grant automatic citizenship to a child born in The Bahamas where at least one parent is Bahamian.

“The only difference in the case of a male parent is that the common law – eminently rooted in common sense – has always required proof of paternity before those other rights can attach, as it is not readily clear who the father is,” the commission said.

“Automatic transmission of citizenship through patrilineal descent could produce absurd results. But an unmarried Bahamian man whose paternity of a child has been legally established or acknowledged should be fully able to transmit his citizenship to his offspring.”

The commission also said it is “of the opinion that a similar entitlement to trace citizenship through descent must be given to the unmarried father whose child is born overseas, after establishment of paternity, since this is what pertains (by virtue of Article 14) in respect of a child born overseas to an unmarried Bahamian woman.”

The commission observed, “this is another of the few provisions in which the constitution discriminates against men in their ability to transmit citizenship.”

McWeeney told National Review that the commission had no way of knowing how big the constituency of people is who were born in The Bahamas to unmarried Bahamian fathers and foreign mothers.

He noted that the paternity test would serve as a safeguard.

“It’s not as if anyone can come along and swear an affidavit and say ‘I’m the father of this child’,” he said. “There would have to be some DNA or other scientific evidence before the powers that be would recognize this right. It’s very easy to prove who is the mother of a child, but who is the father could always be an open question. That’s why you need something like DNA evidence to definitively nail it down.”

Interestingly, the current attorney general was also a member of the McWeeney commission.

REFORMS UNLIKELY

While the 2016 constitutional referendum was largely viewed as a “women’s rights” and “gay rights” referendum, it also importantly addressed discrimination against unmarried Bahamian men.

Under the change that had been proposed to the constitution in question three, a Bahamian father of a person born outside of wedlock, after the coming into operation of the amendment, would have been able to pass his citizenship to that person subject to legal proof that he is the father.

Voters rejected that change, as well as the other three referendum questions, much like they voted against the 2002 constitutional referendum, the first attempt made at amending the constitution.

Both referenda sought to eliminate gender discriminatory language from the constitution.

Had voters accepted the proposed constitutional change, the court challenge would have been moot.

Speaking of the 2016 vote, McWeeney noted that the referendum failed for reasons most people would accept had nothing to do with the actual constitutional issue but the overarching political issues at play at that time.

He observed that many people did not seriously consider the constitutional issues.

“Had they done so,” McWeeney added, “this would have been a non-issue now.”

While the work of the McWeeney commission – whose report came on the 40th anniversary of Bahamian independence – remains invaluable, it is unlikely that we will have constitutional reform anytime soon.

Speaking in 2012 at a Constitutional Commission meeting, Dr. Hubert Minnis, then leader of the opposition, noted that “constitutional reform should be incremental and progressive, keeping pace with the broad consensus of society but not seeking to out-pace that consensus”.

He said, “Constitutional reform should also be inclusive and expansive, erring at all times in favor of expanding human rights, equality and dignity, limiting to the extent possible the intrusive powers of the state and the worst aspects of human interaction.”

The Bahamian public to date has not had an appetite for constitutional reform. It is not something the Minnis administration has identified as a priority item.

Last December, opposition leader Philip Brave Davis also said a Davis administration would not give priority to another constitutional referendum.

Roker said yesterday he does not expect to see any constitutional changes anytime soon.

“We should, but I don’t believe we will for all kinds of different reasons,” he said when asked whether the constitution should be changed.

“The way our constitution is written, the way you have to change that, I don’t believe you are going to get much change on that. People will vote against it for different reasons.”

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Candia Dames

Candia Dames is the executive editor of The Nassau Guardian.

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