FORMER Attorney General Sean McWeeney.
By RASHAD ROLLE
Tribune Senior Reporter
rrolle@tribunemedia.net
FORMER Attorney General Sean McWeeney says despite the Court of Appeal’s affirmation of a landmark Supreme Court ruling on citizenship, the status quo will prevail until the Privy Council has ruled on the matter.
In a three to two decision, the Court of Appeal on Monday affirmed Justice Ian Winder’s ruling that children born in The Bahamas are automatically citizens if either parent is a Bahamian. In particular, the ruling says, children born out of wedlock to Bahamian fathers are automatically citizens, even if their mother is non-Bahamian.
Attorney Wayne Munroe, who represented the applicants in the Supreme Court, said on Monday the appellate court’s ruling is now the law of the land, therefore people who fit into the category should begin applying for passports and voter’s cards.
However, Mr McWeeney, QC, head of the Constitutional Commission established by the previous administration, said for practical reasons the status quo will be maintained until a final ruling is made.
“The jury is still out there,” he said. “Given that there is a split decision of a full panel of the Court of Appeal, it’s a case that cries out for an appeal to the Privy Council. That is almost inevitable. Until that happens and until the judgement of the Privy Council is released, it means the effect of the jury is still out and the status quo is maintained.
“Nobody should go rushing off to the Ministry of National Security. The legal journey is nearly complete but there’s still one more leg of the race to be run, namely the Privy Council. By next year this time probably even before then, you would have a definitive ruling.”
Mr McWeeney said the idea that the status quo will be maintained is based on practical considerations, not legal principles.
“Nobody wants to assume that this is a definitive legal position on the basis that certain rights can be recognised when that legal ball is still up in the air,” he said.
“What happens if the Privy Council comes down six months from now and says the majority got it wrong? I don’t think it’s a kind of case where someone can steal a march on. The practical reality is the government won’t deal with anything on the basis of the Court of Appeal’s position. Whether that’s the legal thing to do is another question, but no government is going to change their policies based on what they understand to be a decision of a court that will be appealed to the highest court under the Constitution.”
It remains unclear how many people can be affected by the ruling if it stands. While Mr Munroe estimates that tens of thousands of people are likely to fall into this category, Mr McWeeney said his Constitutional Commission unsuccessfully tried to get reliable information on the matter.
“We tried very hard to get that information and that is a very important question,” he said.
“Frankly, knowing the way the Privy Council operates, while there is a veneer of concern about only the technical issues, they will want to know how many people are affected by this and how big is this constituency. That affects how you approach these legal questions even if they’ll never admit it. When we were in session, we made numerous efforts to get the information. Anything the government says about it would be fairly anecdotal.”
Mr McWeeney said Justice Winder’s decision and that of majority judges who heard the case are in line with what the Constitutional Commission concluded in its 2013 report.
However, he said, even the commission was divided on the matter.
“I’m not surprised that you have this split,” he said. “It mirrors the internal division we had on the commission as well. There was a very spirited debate.”
Meanwhile, Attorney General Carl Bethel elaborated on his plans to appeal the ruling ahead of a Cabinet meeting yesterday.
“The issue of who is entitled to be Bahamian, like the fundamental rights and classes of the Constitution, is a very fundamental matter,” he said.
“And this matter would’ve ended up before the Privy Council irrespective of who would have won in the Court of Appeal. Had the other side lost, they would’ve taken it and I’m sure the Bahamian people would not accept any judgement on a matter that doesn’t come from the highest court in the land which is the Privy Council, so it is the government’s intention to appeal the matter.
“This is very fundamental. It’s a simple question really, which is to prevail? We acknowledge the original intent of the founders of the Constitution or whether the contemporary concepts or norms ought to prevail over original intent. You must bear in mind that not only is this a question of original intent, but it’s also a question of national intent. There were two referenda on this issue, each of which as far as the Bahamian people are concerned, definitively resolved the issue and so we have to see what the highest court has to say on the matter.
“I express no point of view. It has always been the intent of the Attorney General’s Office to merely have the law clarified by the highest court in the land. Whatever adjustments would have to be made to domestic law would have to be made.”
Meanwhile Immigration Minister Elsworth Johnson could not say how his department will react to people who apply for passports because of the ruling.
“Persons can do, as long as it falls within the ambit of the law, they can do anything,” he said. “And so if persons feel as if that’s what they want to do, that’s it. I haven’t properly gone through the decision. I haven’t taken advice from the Attorney General.”
Comments
TalRussell 2 years, 10 months ago
I was under the impression that Privy Council decisions are not normally binding on any judge? They do not set laws, yes?
tribanon 2 years, 10 months ago
LET'S BE ENTIRELY CLEAR HERE:
Chapter II, Article 6 of our Constitution states:
"Every person born in The Bahamas after 9th July 1973 shall be come 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."
And the relevant interpretation in Chapter II, Article 14(1) 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."
Article 6 refers to "parents" which can only be a reference to the father and the mother of the person. Accordingly, in the case of the person born out of wedlock in The Bahamas, Article 14(1) requires that the reference to the father in Article 6 be construed (interpreted) as a reference to the mother of the person. Therefore, if the mother of the person was a non-Bahamian at the time of the person's birth, then the person is not entitled to Bahamian citizenship notwithstanding the fact that the person's father was a Bahamian at the time of the person's birth.
Our Constitution is less than 50 years old and is therefore a baby compared to the much older constitutions of many other democratic countries like the UK, Canada and the US. It is not a document to be changed lightly, especially where the change would impact an intent at the time of its signing that is even more relevant today for the very reasoning behind the original intent. And it is certainly not a document to be changed by the courts rather than the people because of the very misguided political motivations or humanitarian considerations of a few justices (judges).
newcitizen 2 years, 10 months ago
You are just straight up a bigot, there is really no other way to put it.
tribanon 2 years, 10 months ago
I believe it was Samuel Clemens (pen name "Mark Twain") who once said "No amount of evidence will ever persuade an idiot."
DonAnthony 2 years, 10 months ago
So despite the evidence you still do not realize you are a bigot😀
tribanon 2 years, 10 months ago
Wishful thinking and actual evidence have always been two very different things. But you're certainly entitled to wishfully conjure up in that head of yours whatever evidence you may need to support your wishful opinion of me. lol
Godson 2 years, 10 months ago
What I have found interesting about this debate is the fact that nothing, absolutely nothing, in the constitutional provision, nor the proviso for its interpretation, utters or ushers in any reference to a 'non-Bahamian' or parent that is a 'foreign national'; however, due to the loud and persistent drumming by those who wish to include 'foreign nationality' as an element in the provision, (if you are not articulate in reading the provision) you too would begin to think the provision somehow make reference to the nationality of the parents. IT DOES NOT!!!
It is a constitutional provision that singles out and addresses only the MARITAL STATUS of the parents. The provision is written as though it is a given that both parents, under consideration, are citizens of The Bahamas. Only the marital status of the parents is under the microscope of the provision to be examined, NOT THEIR NATIONALITY.
NOTHING IN THE PROVISION INVITES FURTHER AND MORE CONSIDERATION OF THE PARENT'S NATIONALITIES as it relates to the right to Bahamian citizenship; ABSOLUTELY NOTHING!
It is the debaters that have insinuated that the provisions speak to the nationality of the parents. WRONG!
tribanon 2 years, 10 months ago
The citizenship provisions in Chapter II of our Constitution are riddled with references to "persons born outside of The Bahamas" or "a citizen of some other country" or "citizenship or nationality of some other country" or "a citizen or national of any other country". And these provisions were never intended to be interpreted on a stand-alone basis without regard to the context they were clearly crafted to give each other.
Godson 2 years, 10 months ago
This may be rightly so, that is, the mentioning of nationalities other than Bahamian in other sections of Chapter II, however, what you summate is merely a constructive tool that the court may apply and use in a case where the provision is clearly ambiguous. This is not the case here. The consideration in the provision in question is restricted to the MARITAL STATUS of the parents of a child born in the Bahamas. It is a given that both parents are Bahamian.
You are rightly describing one of several approaches that the court may utilize in arriving at a fair interpretation of a provision that is, on the face of it, ambiguous. It is my view that there is no ambiguity in that provision. I guess it is a matter of interpretive skills???
tribanon 2 years, 10 months ago
And there's absolutely no ambiguity about the intent of Chapter II, Article 14(1) when it comes to the required interpretation of Chapter II, Article 6.
newcitizen 2 years, 10 months ago
The Privy Council will likely not even accept the case.
tribanon 2 years, 10 months ago
I certainly wouldn't bank on that. The Privy Council is usually eager to hear cases in which a higher court has egregiously erred in affirming a seriously flawed ruling of a lower court, especially involving matters that are in the interest of national security or public policy.
newcitizen 2 years, 10 months ago
If this goes to the privy council, they will absolutely uphold the ruling. The UK is not interested in affirming discriminatory policies in their former colonies.
tribanon 2 years, 10 months ago
One would like to think and hope that The Privy Council would not be inclined to let our courts thwart the will of the vast majority of the Bahamian people as resoundingly expressed in the national referendum on proposed changes to the citizenship provisions of the Constitution that was duly held less than a decade ago.
Chucky 2 years, 10 months ago
The only time an aged docent is considered as gospel is if it's a constitutional document.
In all other cases, society happily endorses recent facts, modern society and modern point of view.
If there is one document that should be seen to seen to require frequent update it is the constitution of a democracy.
There is no other example of historical beliefs trumping the evolution of thought or addition of information.
This is an example of pure dogma
Why would anyone want any society want to follow a document written people who lived in another era, under different circumstances?
The idiology of considering a constitution, as the best source of guiding principles, purporting the principals should persist indefinitely, serves only to anchor any dogmas of the past to the future of a nation. Quite possibly the worst means of hampering development and prosperity of a nation!
While our constitution is fairly young, it's still a far cry from the from a document presenting the best ideas of our time. Unlike others, I'm thankfulll we don't have a near ancient constitutional document like some of the older democracies, which have essentially enshrined the mindset from an irrelevant past into modern society.
The dinosaurs are dead and gone, so are the cowboys; yet Americans , some of them still walk around with a gun on there hip. And it's legal because of an antiquated constitution!
Tell me folks, do you feel more comfortable being in America with the fun toting idiots, or in Canada ?
It's worth questioning the motives of anyone who supports the practice of following outdated principles.
FrustratedBusinessman 2 years, 10 months ago
Take a walk in Brampton or the "diverse" parts of the GTA and tell me how bloody safe you feel. Crime ridden shitholes on par with most of the Caribbean. Amazing how places like Switzerland or Vermont don't seem to have any issues with crime and gun ownership, but don't let that stop you from pushing the disarmament agenda.
The 2A existed for the protection of America as a newly founded nation. Thanks to the Monroe Doctrine, America hasn't had to face any direct threats on their borders since the days of Santa Anna, so the immediate importance of that amendment has been lost in the eyes of the average person, but it isn't any less valid. As the Japanese realized during the 40s, there would be a rifle behind every blade of grass if America were ever invaded....or at least there would be at one point in time.
Chucky 2 years, 10 months ago
Your talking about the worst area of Canada. ( Where diversity is there strength). But you know the most of the country is safe
bogart 2 years, 10 months ago
Many dynamics emerges over the lives of tens of thousands people involved and further 400,000 lives of existing Bahamian citizens involved.
Over the decades of frequent apprehensions of persons without Bahamian papers etc and automatically returned to mostly Haiti and Jamaica would seem they were illegally done and many were the children of the Bahamian father and entitled to return ticket, be returned back to Nassau Airport.
Now if they have been certified wid Bahamian papers, seems there will have host of more challenges arising especially from "new' brothers and sisters coming forth an wid new nieces, nephews abroad and returning back ....whichinin.. existing Bahamians did not know about. And now well known national sweethearting local or foreign women and babies comes with responsibilities, is ensured.
In light of the recent monumental challenges, matter of tens of thousands persons which affects 400,000 present Bahamians ways of life, there obviously national concern to all, there should be immediately created a national committee to come up with best avenues of solution , answers, orderly way forward...rather than a jolt possible chaos... to society to this critical matter for 400,000 plus tens of thousands more.
Chucky 2 years, 10 months ago
One has to wonder what it is that the average bahamian fears regarding the citizenship of these children of the "unwed"?
Pride of the land/country is unlikely as judged by the garbage thrown about by our citizenry.
Pride and concern for the environment, even less likely , as a bove we dump garbage everywhere, oil too, dig away our hills , bleach our coral reefs, etc
Is it for selfish reasons? More land for me?
We have next to no pride when it comes to our work ethic and production.
No concern for our fellow citizens, we seem more likely to be shot than helped by a neighbor.
We don't care about the education of our citizenry now , so it would seem we needent worry about diluting the education effectiveness. Same for healthcare.
I think one could make an argument that for the most pArt , people from almost anywhere else would likely be better citizens than the majority we have.
We certainly could welcome any dilution of our gene pool.
newcitizen 2 years, 10 months ago
It's amazing that someone can lay fault on an innocent child who had no part in the (perceived) discretion of their parents. Talk about sins of the father...
tribanon 2 years, 10 months ago
I sincerely hope you're not referring to the Almighty Father.
tribanon 2 years, 10 months ago
As if it was for Sean to determine. Talk about an over-inflated opinion of one's self !
The very devious Sean should be asked what happens if flea-ridden Carl Bethel does not file an appeal with The Privy Council within the required period of time.
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