In a three to two decision, the Court of Appeal yesterday affirmed a landmark 2020 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.
Justices Stella Crane-Scott, Jon Isaacs and Roy Jones ruled to uphold the landmark ruling 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.
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.”
Winder ruled that “every person born in The Bahamas after 9 July 1973 shall become a citizen of The Bahamas at the date of his birth if at that date either of his parents is a citizen of The Bahamas, irrespective of the marital status of the parents at the time of birth”.
The government then appealed on the grounds that Winder “erred and misdirected himself in law in holding that the only interpretation, having regard to the language used and giving effect to the provisions of the Bahamian constitution dealing with the fundamental rights and freedoms of the individual, is to preclude any reference to Article 14(1) by application of Article 6”.
Justice Crane-Scott found Winder’s legal analysis in his ruling “logical, thoughtful and well-reasoned”.
“I can find no fault in the learned judge’s conclusions or in the approach he employed to the interpretation of Article 6 or Article 14(1) of The Bahamas constitution,” she ruled.
“He applied the correct canons of statutory interpretation and justified his thoughtful conclusions…”
She added, “For all the reasons outlined in this judgment, I am satisfied that the proper interpretation, which the framers intended to be given to Article 6 of The Bahamas constitution is that every person born in The Bahamas after the 9 July 1973 shall become a citizen of The Bahamas at the date of his birth if at that date either of his biological parents is a citizen of The Bahamas, irrespective of the marital status of the parents at the time of birth.
“It should now also follow that Article 14(1) of The Bahamas constitution is to be read as having direct application to the interpretation of Article 3(2) and Article 8 in Chapter II where the word father expressly appears.”
Justice Isaacs and Justice Jones agreed with Crane-Scott.
“The narrow issue for us to determine is whether Winder’s interpretation is correct or plainly wrong,” Isaacs said.
“I have read in draft the judgment of Crane-Scott, JA, and I am driven by the force of her reasoning, to agree with her conclusion that the judge was correct to find that Article 6 of the constitution is not to be read subject to Article 14(1) of the constitution.”
He ruled that “it is significant that those articles of the constitution that use the term father in Chapter II of the constitution relates to persons born outside of The Bahamas”.
“In those circumstances, the necessity of determining the nationality of a child born out of wedlock to a Bahamian woman was of some importance because of the common law principle of filius nullius, i.e., a son of nobody,” he said.
“Article 14(1) enabled an unwed Bahamian mother to step into the shoes of a Bahamian father to claim the Bahamian birthright for her child, subject to the limitations contained in the constitution itself, and thereby avoid the possibility of the child being considered stateless.
“Like the judge and Crane-Scott, JA, I find that the draftsman’s shift in language is illustrative of his intent that the words parents and father were to import a different meaning to each.
“The clear words of Article 6: either of his parents is a citizen of The Bahamas, leads inexorably to the conclusion that the intent is to avoid any apparent discriminatory feature in the constitution, that is to say, both the mother and the father of the child are placed on an equal footing with no regard as to any artificial differentiation of legitimate or illegitimate.”
Justice Jones agreed that Winder’s judgment “represents the correct interpretation” of Articles 6 and 14(1).
“Winder J reasonably concluded that where Article 6 of the Bahamian constitution uses the word parent and not the word father, Article 14(1) cannot be used to determine what Parliament intended in using the word parent in interpreting Article 6,” he said.
“The judge properly relied on the canon of construction that a change in language indicates a different intent.”
But Sir Michael and Justice Evans disagreed.
Sir Michael said the issue on appeal “is whether on a proper construction of Article 6 of the constitution persons born out of wedlock of a Bahamian father are citizens of The Bahamas upon birth where the mother is not a Bahamian citizen”.
“It is clear that when in Chapter II (which is the only chapter of the constitution that we are concerned with) the constitution refers to the word father it did not intend to mean the father of a child born out of wedlock.
“The learned judge suggests that because Article 6 uses the word parent and not the word father no assistance can be found in Article 14(a) to determine what Parliament intended in using the word parent and to the extent any assistance can be derived he relies on the canon of construction that a change in language indicates a different intent.”
Justice Evans said it is clear that framers of the constitution chose to remove entitlement to citizenship based on birth in The Bahamas alone but instead in Article 6 combined birth in The Bahamas with descent from a Bahamian parent.
“A constitution should be read so as to give effect to what is obviously the intent of the framers,” he said.
“This cannot only apply when this results in a position with which we agree and find favorable.
“A constitution cannot be construed to mean something which on its clear wording it does not mean. It is evident from the scheme of the constitution that the framers of our constitution intended to not recognize citizenship by descent from a father when the child is born out of wedlock.
“We must accept this in the same way that we are constrained to accept that whereas a woman married to a Bahamian man may obtain citizenship, the same does not apply to a man married to a Bahamian woman.
“To do otherwise would lead us into the realm of judicial activism. It is clear from a reading of the provisions dealing with citizenship that the framers took deliberate steps to ensure that citizenship in the post-independence Bahamas not be automatically granted to persons born in The Bahamas out of wedlock by virtue of descent from their fathers.
“Articles 6 and 14 must be construed with this reality. This will remain the reality until Parliament finds a proper way to deal with this most unfortunate situation. Of course, the ultimate decision will rest with the Bahamian public in a referendum.”
Williams, along with attorneys Kayla Green-Smith, Kirkland Mackey, Keith Cargill, Raquel Whyms and Lukella Lindor appeared on behalf of the attorney general.
The respondents in the matter, Shannon Tyreck Rolle, Lavaughn Shawn Rolle, Casshonya Pasha Rolle, Mayson Juno Pierre and Nikey Pierre, were represented by Wayne Munroe, QC, and attorney Bridget Ward.
Attorney General Carl Bethel said the government will appeal the ruling to the Privy Council.