Supreme Court delivers historic ruling on citizenship

Supreme Court delivers historic ruling on citizenship

Attorney General says govt. will appeal

NASSAU, BAHAMAS — Supreme Court Justice Ian Winder has ruled that children born out of wedlock to foreign women and Bahamian men are entitled to citizenship at birth.

Winder’s ruling deals with separate applications for declarations over the true interpretation of Article 6 of the constitution which deems that “Every person born in The Bahamas after 9th 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”.

The applications include a case involving three children born out of wedlock to a Jamaican woman and two children born out of wedlock to a Haitian woman – both cases fathered by Bahamian men.

The decision called for a determination over whether the reference in Article 14 of the constitution to “father” is to be applied to the interpretation of Article 6.

That article states, “Any reference in this Chapter to the father of a person shall, in relation to any person born out of wedlock other than a person legitimated before 10th July 1973, be construed as a reference to the mother of that person.”

“In this case, the only proper interpretation, having regard to the language giving effect to the provisions of the Bahamian constitution dealing with the fundamental rights and freedoms of an individual, is to preclude any application of Article 14 (1) by direct reference,” Winder ruled.

“Further, as the constitution is sui generis, calling for principles of interpretation of its own, the interpretation of parents in Article 6 as a reference to the natural parents, is the only interpretation suitable to the character and spirit of the constitution.”

The applicants, represented by Wayne Munroe QC, sought a declaration that the true construction of Article 6 is that any person born to either Bahamian parent after July 9, 1973 is a citizen at birth.

They further sought a declaration that the children in question were born to a Bahamian father and entitled are entitled to citizenship pursuant to Article 6 of the constitution.

Additionally, they sought a declaration that “the wording of Article 14 does not affect the rights given under Article 6 in that Article 14 only applies where the word ‘father’ is mentioned in the relevant chapter and does not affect the wording of either parent as set out in Article 6.”

Winder’s ruling goes against the precedent set by former Chief Justice Sir Burton Hall in K v. The Minister of Foreign Affairs and Other [2007] 2 BHS No. 12.

Hall’s ruling put forth the view that “the only interpretation possible of the word “parents” in Article 6 is the ordinary grammatical meaning of “father or mother” and I am not persuaded that the absence of “parents” anywhere else in Chapter II…has any significance other than the economical use of language by the draftsman of the constitution.”

But Winder noted that he respectfully does not share the view of Hall.

“In my view, it is simply just wrong to seek to apply article 14 (1) to article 6 as the words father and mother do not appear in it,” Winder said in his ruling.

“It seems clear that in every place where it was intended by Parliament to refer to father and mother in their legal sense, it did so.”

The Supreme Court Justice noted that he is cognizant of the impact of his decision.

“As Hall Cj quite correctly indicated, such a policy cannot affect the true legal position,” Winder said.

“That legal position, however, in my view, must be that every person born in The Bahamas after 9th July 1973 shall become a citizen of The Bahamas at the date of his birth if at the 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 current matter is ongoing and was adjourned to July 29 2020.

Attorney General Carl Bethel told media yesterday the Office of the Attorney General will appeal the ruling in the public’s interest.