Legal wrangling on citizenship

Privy Council set to rule on constitutional provisions

A British lawyer representing the attorney general of The Bahamas has argued before the Judicial Committee of the Privy Council that the Bahamian constitution provides no automatic right to citizenship for children born in the country to Bahamian fathers not married to the children’s foreign mothers, but another King’s Counsel contended that the now-chief justice, Sir Ian Winder, got it right when he determined otherwise in a 2020 landmark ruling.

The final appellate court for The Bahamas is now left to answer a key question: Does the Constitution of The Bahamas confer citizenship at birth on a person born in The Bahamas who is the child of an unmarried woman who is not a citizen of The Bahamas and a man who is?

The attorney general has appealed a decision of the Court of Appeal, which affirmed Winder’s ruling that every person born in The Bahamas shall become a citizen of The Bahamas at their date of birth pursuant to Article 6 of the constitution if either biological parent, irrespective of their marital status, is a citizen of The Bahamas.

The respondents in the case are Shannon Tyreck Rolle, Lavaughn Shawn Rolle, Casshonya Pasha Rolle, Mayson Juno Pierre and Nikey Pierre.

The Privy Council outlined the facts of the case: The respondents were born in The Bahamas. They claim that their biological fathers are citizens of The Bahamas but their mothers are not. Their parents were not married at the dates of their births.

They sought declarations from the Supreme Court of The Bahamas that they are entitled to citizenship of The Bahamas pursuant to Article 6 of the constitution.

The attorney general disputes certain facts underlying the respondents’ claims for citizenship.

However, the Supreme Court decided to determine first whether the respondents would have citizenship as a matter of law, on the assumption that their claims are factually correct.

Final determination of the claims, based on the evidence, was adjourned to allow for any appeal on the legal issue.

In coming to his decision, Winder departed from previous cases.

In dismissing the attorney general’s appeal in 2021, the Court of Appeal upheld his decision by a majority of three to two.

In arguments in London on January 17, Thomas Roe, KC, said, “It is a purely legal question and we’re not concerned with the merits or otherwise of the state of the existing law. The question is, what does the constitution mean and if it is to be changed, how should it be changed?”

Roe said, “Whatever may be the position now, when the constitution was made in 1973, there was a strong presumption that a reference to parents in a legal instrument concerning nationality was a reference to mother, or father is married to the mother.”

But Edward Fitzgerald, KC, arguing on the respondents’ behalf, submitted that the judgment of Justice Winder was correct.

The five respondents each claimed the right to Bahamian citizenship under Article 6 on the basis of their having been born in The Bahamas after July 9, 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.”

Fitzgerald told the Judicial Committee, “Chief Justice Winder was correct, coherent, and produced a sensible interpretation of the interplay of the constitutional provisions.”

 Fitzgerald read out to the court the position of the 2013 Constitutional Commission on Article 6.

The commission, which was headed by former Attorney General Sean McWeeney, KC, was of the view that this provision is not discriminatory.

It stated, “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.

“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 of respect for the courts — to be the erroneous interpretation of the word ‘parents’ in this 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 (an objective condition) where at least one parent is Bahamian (another condition that is capable of being objectively determined).

“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.

“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 was also 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.

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

But Roe contended it would be odd that the framers of the constitution determined that legitimacy mattered with respect to how Bahamian citizenship is conferred on children born outside The Bahamas, but that it did not as it relates to children born inside The Bahamas.

He said for the framers to have made that decision regarding the 1973 constitution “would actually have been a surprising thing to do”.

“…It would actually as a matter of construction be very surprising if they had intended in 1973 to strike out in a different direction and say as regard people born in The Bahamas of parentage, whether you’re born of married parents doesn’t matter, but at the same time, to people born outside The Bahamas it matters a great deal,” said Roe, who appeared along with Assistant Director of Legal Affairs Kirkland Mackey.

Under Article 9 of the constitution, children born overseas to a Bahamian woman married to a foreign man have a right to be registered as citizens at the age of 18 and before 21.

“This is one of the provisions that clearly espouses a gender bias, and which should on that account be changed,” the 2013 commission concluded.

Two constitutional referenda — one in 2002 and one in 2016 — sought to ensure clear gender equality on citizenship matters.

They both failed.

In his arguments before the Judicial Committee, Roe said there are good reasons why any change in the understanding of what is meant by “either of his parents” needs to be made through the democratic process and not as a process of judicial interpretation.

In June 2021, then-Attorney General Carl Bethel explained why the government was appealing the Court of Appeal ruling to the Privy Council.

“This is a matter that can only be finally and comprehensively addressed by the highest court in the land, the Privy Council,” Bethel said.

Last March, current Attorney General Ryan Pinder also said, “…The nature of the decision requires the ultimate court to make a determination.”

The Davis administration awaits a final determination on this matter, even as it prepares a citizenship bill, which Pinder said “will create equality between men and women when it comes to citizenship matters in this country”.

“[That is] something that has been impossible to attain through referenda,” Pinder noted in the Senate last year.

“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.”

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Candia Dames

Candia Dames is the executive editor of The Nassau Guardian.

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