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QC points to potential drawback of citizenship through legislation 

Maurice Glinton, QC, a noted constitutional scholar, has warned that granting of citizenship through ordinary legislation means that another parliament can revoke that citizenship.

It’s one consideration in the debate surrounding the Davis administration’s intention to address transmission of citizenship through legislation rather than going to a referendum to change the constitution.

That intention has drawn criticism from two signatories to the constitution, one of whom predicted that the legislation would be challenged once it is put forward.

A. Loftus Roker has said he does not believe the government’s approach will work because “you can’t alter the constitution by ordinary law”. He said any such measure would face legal challenge. George Smith has shared similar views as Roker.

Attorney General Ryan Pinder recently defended the government’s plan to bring citizenship reform through ordinary legislation rather than amending the constitution via a referendum, saying the government was not afraid of a legal challenge.

Pinder said, “Well we have failed twice to change the constitution and it is an important element of the equality of our people that they see themselves equal amongst each other. If that means doing it by legislation, that’s what it means.”

Speaking with The Nassau Guardian this week, Glinton pointed to Article 13(b) of the constitution, which gives parliament the power to revoke citizenship from anyone except those persons who were born in The Bahamas prior to July 9, 1973, or – if born outside The Bahamas – whose father was born in The Bahamas prior to independence; anyone born in The Bahamas to Bahamian parents after July 9, 1973, or anyone born outside The Bahamas after independence to a Bahamian father.

Glinton said, “That is the challenge. It says that however you deal with these would-be citizens – those ones who are yet to come and who are looking at these new arrangements that will be put in place – you must then have to deal with them also in the context of that provision.

“Are their citizenships going to be of the type or kind that they can be deprived of it?”

He said that in order to protect against that vulnerability, the government would have to amend that provision of the constitution.

Noting reference in the debate to the provisions for granting citizenship under the Bahamas Nationality Act, Glinton said citizenship acquired under this legislation does not have the protection of citizenship via articles 3, 6 and 8 of the constitution.

Meanwhile, Glinton said the country has taken a particular view of “this idea of citizenship, as if it’s something that runs in the bloodstream of a man or woman and they can pass it on as they use in all this loose language”.

“There is nothing to be passed on,” he said.

“It isn’t like that. You’re dealing with a status. You’re dealing with, in some instances – where the constitution speaks about [it] – the rights of a child to get something or to come into something.”

He noted that the issue of discrimination arose because Bahamian-born men can do some things that Bahamian-born women could not, and that was, therefore, discrimination. He disagreed with this interpretation.

“The constitution does not discriminate,” Glinton argued.

“It is incapable of discriminating. It declares itself at the very beginning to be anything else but a document that is concerned with disparate treatments of people.”

He cited the recent landmark ruling by then-Supreme Court Justice Ian Winder (now chief justice) – upheld by the Court of Appeal – that children born out of wedlock to foreign women and Bahamian men are entitled to citizenship at birth. The government appealed Winder’s ruling, handed down last May, over the true interpretation of Article 6 of the constitution.

“I think Justice Winder got the law right,” Glinton said.

Glinton suggested that Winder’s ruling serves as a guidepost for dealing with the issue and proposed that another guidepost would be the recommendations that came out of the Constitutional Commission headed by Sean McWeeney, QC.

“We’ve had too many instances in this country where you’ve had studies done and we have not paid any attention to what in fact was recommended,” he said.

“It’s like we get them done and if the document is too elaborate or it requires more study, we can’t be bothered. We’ve got short attention spans. Everything has to be done, like, now.

“This, in fact is the driving force, it seems, behind doing something by legislation, and I take the criticism by many that any government which seeks – having failed two or three times in one method – and decides to do something another way, we have to ask why you didn’t do it that way from the very beginning, if that in fact was the optimum.

“Why didn’t you do it that way from the very beginning?”

Glinton said the problem with the referendums was that there was no time spent educating the Bahamian people so that they were not suspicious that these were just governments dictating to them, and – regarding the government’s stated position of pursuing the equal transmission of citizenship through legislation – he asked, “What is the mischief that you are trying to cure?”

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