National Review

Through the back door?

Govt likely to face pushback in forging new paths to citizenship

The Davis administration, like the Minnis administration before it, has committed to forging new paths to citizenship through statutory, and not constitutional, means.

Attorney General Ryan Pinder said recently, given that two constitutional referendums have failed – one in 2002 during the Ingraham administration and one in 2016 during the Christie administration – the government does not believe a third one would pass.

“So, we are going to proceed with legislation for the equality of the transmission of citizenship for both men and women,” Pinder said.

Though the government plans to skip any effort at constitutional reform, which would require a referendum, planned citizenship legislation could face fierce opposition from some sectors of the general public.

For one, there would likely be powerful voices viewing the effort as an unconstitutional bid to achieve through the backdoor that which past administrations failed to achieve through referendum.

Speaking of the planned legislative means to achieve the citizenship changes, A. Loftus Roker, the former immigration minister who at nearly 87 is one of five signatories to the 1973 constitution still alive today, said, “That will not work because you can’t alter the constitution by ordinary law. They want to avoid going to a referendum, but that’s the only way they can alter the constitution. That’s the problem.”

The government will most certainly point to Article 13(a) of the constitution which states: “Parliament may make provision (a) for the acquisition of citizenship of The Bahamas by persons who do not become citizens of The Bahamas by virtue of the provisions of this chapter …”

Former Attorney General Sean McWeeney, who chaired the last Constitutional Review Commission, which reported in 2013, noted in a chat with National Review on Monday the constitution was never intended to exhaustively provide for all of the circumstances in which you can obtain Bahamian citizenship.

“It dealt with certain special categories which were rooted in pre-existing entitlements and they wanted to make sure that those categories of persons were properly provided for, but there are a whole slew of other categories that were never intended to be provided for in the constitution; and that’s why we have always had a Nationality Act, since we were independent to deal with the circumstances under which citizenship can be acquired otherwise than by reference to the constitution,” McWeeney said.

While Roker said it is important to see exactly what the government is proposing whenever it brings the citizenship bill, he predicted such a measure would face legal challenge.

“You can be sure of challenge,” he said, in response to a question from National Review.

He added, “Once you start that, you can change the whole constitution by ordinary legislation, which means you’re not getting the majority of Bahamians agreeing with changing our constitution and the constitution says that the Bahamians must decide if they want to change the constitution, the Bahamian people, by a referendum.

“Now, if you figure you can’t get the thing changed through a referendum, that tells me you must be a dictator if you are going to change it some other way.”

Roker continued, “If the majority of the people say they don’t want it changed, well then, that’s it, or if they want it changed, then fine. But why do you want to do something without permission of the majority of the Bahamian people? You tell me why; because you say they are not going to agree with it?

“If the majority of the Bahamian people are against what you are going to do, who are you then working for?”

While the citizenship law would not “change” the constitution, it would essentially have the same effect as constitutional reforms, though any future administration could change the law.

But Pinder said, “I don’t think there would be a future government who would change that law to impose inequalities of citizenship upon Bahamians. I mean, if they do, they should be voted out right away.”

George Smith, a member of the constitutional delegation who turned 30 during the talks in London in December 1972, shared similar views as Roker when he spoke with us.

“I think that to change the constitution and something that’s provided specifically in the constitution by any means other than the means laid out in the constitution is an affront to that instrument,” Smith said.

“I think that the architects to the constitution gave much thought to how these matters of citizenship, matters of the state, matters of the judiciary and all of those positions that are entrenched in the constitution should be changed.

“And they appreciated, fully appreciated, that these things in the passing of time and experience, it may be desirable to change them, and it is desirable to correct the inequalities that exist, to correct the gender biases that are in the constitution.

“It is desirable to change it, but we must change it by the way that was envisioned by those who, after wide consultation with the Bahamian people, after consultation with the government and the opposition, put in the constitution to change it in a particular way.

“Why do we now want to find an easier method to do it when we said we want to do it in consultation with the Bahamian people? Don’t we trust them? Don’t we believe they know what is right for their country?

“It smacks at the distrust of the constitution; it is an insult to the architects of the constitution; it smacks at trying to find an easier way of doing that which was never intended to be done easily.”


PROPOSALS

While the citizenship bill has not yet been circulated for consultation, the attorney general gave some indication of matters that will be addressed when he revealed it will address “the equality of the transmission of citizenship for both men and women”.

The first proposed amendment in the 2016 constitution would have allowed children born abroad to obtain Bahamian citizenship from either their Bahamian father or mother, in those circumstances where the other parent is not Bahamian. Right now, only Bahamian men are entitled to pass their Bahamian citizenship to their children born abroad in these situations.

The second amendment would have enabled a Bahamian woman who marries a non-Bahamian man to secure for him the same ability to apply for Bahamian citizenship – following the same steps, and subject to the same considerations – currently afforded to a Bahamian man married to a non-Bahamian woman.

The third amendment would have corrected the provision in the constitution that currently discriminates against men. The change would have meant that an unmarried Bahamian man could pass on his Bahamian citizenship to a child fathered with a non-Bahamian woman, if he is able to prove by DNA evidence that he is the father. This right currently belongs only to women.

Had voters approved it, Article 26 of the constitution would have been updated so that it would become unconstitutional for Parliament to pass any laws that discriminate based on sex, which is defined as “male or female”.

We asked McWeeney whether he thinks constitutional reform will happen in his lifetime.

“I’d be very surprised if it happened in my lifetime, basically because of the historical challenges that we have had in getting anything passed in a referendum, anything,” he said.

“We tried to get the age of retirement of judges increased fairly modestly (in 2002). That didn’t even go through. Bahamians tend to use a very broad brush and sweep every proposal off the table. They tend to conflate these referendum issues with whatever the gripe of the day is against the government.

“When you add that to the xenophobic prejudices that the Bahamian electorate has, that’s a pretty toxic cocktail that you have to deal with.”

The Minnis administration made it clear early on that it would not hold another referendum to attempt constitutional reform.

In November 2017, several months after coming to office, Dr. Hubert Minnis, at the time prime minster, told Parliament his government would provide a statutory path to achieve equality in citizenship matters.

“We know that there were four referendum (questions) that were brought to this country that have failed,” Minnis said.

“My government will make changes to the [Bahamas Nationality Act] to ensure that all children born to Bahamian women, single or married, out of The Bahamas are automatically [conferred citizenship].”

No such bill was ever introduced, although Law Reform Commissioner Dame Anita Allen spent a great deal of time working on the Immigration, Asylum and Nationality Bill, which would have repealed the Bahamas Nationality Act as well as the Immigration Act.

Her work continues in this regard.

It remains to be seen whether the Davis administration will present the one bill that encompasses all those matters or present them as three separate bills.

Interestingly, in 2017 after Prime Minister Minnis’ declaration in Parliament, Progressive Liberal Party (PLP) Chairman Fred Mitchell, who is now minister of foreign affairs, was quoted in the Tribune as saying, The Minnis administration’s plan to amend the Bahamas Nationality Act to grant children of Bahamian women born outside The Bahamas automatic citizenship “almost certainly” runs “ultra vires of the constitution.”

“The constitution says who is automatically a citizen,” Mitchell said.

“But one has to see the details. In any event, under the PLP we had announced that by policy that category of the children of Bahamian women with foreign spouses would be granted citizenship upon application. So I am not sure given the rejection of an amendment to the constitution that the government is in a lawful position to reverse that. I don’t think statue law can alter that.”

Mitchell noted that section 6(2) of the Bahamas National Act currently gives the minister power to grant citizenship to any child upon application.

The McWeeney commission recommended in its 2013 report that the minister’s discretion to refuse request for citizenship should be subject to review by a court.

The commission recommended that all articles of the constitution with respect to citizenship should be recast in gender-neutral language.

The commission also noted that Article 7, which relates to children born in The Bahamas where neither parent is a Bahamian and entitles them to apply for citizenship at the age of 18, is the most problematic of all the citizenship provisions of the constitution.

The McWeeney commission had recommended the appointment of a commission to consider further questions relating to nationality and the basis on which nationality should be acquired by children born in The Bahamas to non-Bahamian parents.

No such commission was ever appointed.

We understand this issue of children born in The Bahamas to foreign parents might be addressed in the citizenship bill the current government intends to bring, with a right of abode provision.

The timing of the bill is not yet clear, but, again, it won’t likely be smooth sailing for the government in getting the measure passed.

While noting that he does not yet now what the government intends to include in the proposed legislation, McWeeney noted that such a bill could become embroiled in controversy.

“And, in fact, arguably more so because you then have to face the charge that you’re trying to sneak something in that you know full well you could never get passed in a referendum, and that’s the problem any government has,” he said.

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Candia Dames

Candia Dames is the executive editor of The Nassau Guardian.

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