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Constitution Cannot Back Illegal Act

EDITOR, The Tribune.

In February 2012, using easy to follow examples, I explained why children born to illegal migrants are not constitutionally entitled to be registered as citizens of The Bahamas. Surprisingly, six (6) years later, neither the government, nor the advocates of illegal migrants, have gotten the message. Sadly, and most regrettably, the Supreme Court, (based on Justice Hilton’s recent ruling) has not gotten the message either. I am quite disappointed and frustrated at the apparent inability (or is it unwillingness?) to correctly parse the law.

Both The Nassau Guardian and The Tribune graciously published my letter in February 2012. I have attached the original letter and humbly request that you republish it at your earliest opportunity. I trust that given the current climate, my letter will inform the current narrative and in the process, receive due critical attention and review, especially from the legal fraternity and learned counsel such as former Chief Justice Joan Sawyer.

Thank you.

GENERATION BAHAMIAN

EDITOR, The Tribune.

CONTRARY to popular belief, children born in The Bahamas to illegal migrants are not entitled to be registered for citizenship.

Two examples illustrate this point:

• Example one: Peter buys a car, which he then gives to his wife as a gift. Later, the police determine that the car was stolen and confiscates the car. Peter bought the car in good faith and neither he nor his wife knew that the car was stolen. Is Peter or his wife entitled to keep the car? No! But he didn’t know that the car was stolen, and paid for the car. Still no! Why not? Because the car was illegally obtained (ie it was stolen).

A legal act (sale of the car) cannot result from an illegal act (stolen car). So even though Peter and his wife did nothing wrong, they cannot profit/benefit from the illegal act (sale of a stolen car). They are not entitled to keep the car. (By the way, a similar situation was recently reported in the media).

• Example two: Joseph is a wealthy man. He owns expensive cars, boats, and a big house. He has a young stay-at-home wife and two young children that live with him in his big house. One day, Joseph is arrested and charged for criminal activity. At the trial, Joseph is found guilty and it is determined that all of his wealth was obtained from his criminal activity. All of his possessions, the expensive cars, boats, big house are confiscated. Joseph’s wife and two young children must move out of the house, they have no other possessions and nowhere to go. Can his wife and young children keep the house? No! Can they keep a car? No! Why not? Because the wealth was illegally obtained (from criminal activity). A legal act cannot result from an illegal act. So even though his wife and children did nothing wrong, they cannot profit/benefit from his illegal acts (criminal acts). They are not entitled to keep Joseph’s wealth.

Now to the case at hand: The Constitution of The Bahamas is the highest law in the land; it is the “supreme law.” It is a set of fundamental principles or rules by which a sovereign state (The Bahamas) is governed. The rule of law is a fundamental principle of any constitution, ours is no exception. Any act that is contrary to the rule of law (i.e. that breaks the law) is contrary to the constitution. The constitution cannot condone an illegal act; to do so would render the constitution itself null and void.

Now whereas The Constitution of The Bahamas provides for a person born in The Bahamas to parents who are not Bahamian citizens to apply to be registered as a Bahamian upon attaining the age of 18 years, this entitlement may only be afforded to persons who acted according to the rule of law (ie parents that were in the country legally at the time of birth).

An illegal immigrant (illegal is the key word) broke the law, and therefore the child of an illegal immigrant is not entitled to apply to register as a Bahamian because the “entitlement” was illegally obtained. Even though the child did nothing wrong, the child cannot profit/benefit from the illegal act (illegal migration of the parents). The child is not entitled to apply to be registered as a Bahamian.

Therefore, all Bahamian citizenships granted in these circumstances are unconstitutional, illegal and therefore void and of no effect.

As regards the children of illegal Haitian immigrants, applying the law of the land will not make these children “stateless”. According to Article II of the Haitian Constitution, “any person born of a Haitian father or Haitian mother...possesses Haitian nationality at the time of birth,” therefore the child is a Haitian national at birth.

Further, The Constitution of The Bahamas requires that foreign nationals who apply for Bahamian citizenship must first renounce the citizenship of the other country in order to receive Bahamian citizenship.

Therefore, even if we assume that these children of Haitian parents are entitled to apply to be registered, given that these children are “Haitian at birth”, did they renounce their Haitian citizenship? If not, then by law, Bahamian citizenship cannot be conferred on these persons, making these grants of citizenship unconstitutional, null, void and of no effect.

We are a small country, a few people. Why do we so foolishly give away our country, our birthright?

Mr Prime Minister, Mr Attorney General, Mr Minister of Immigration, we are a small country, a few people, please do your job and protect our country, protect our sovereignty, protect our birthright - otherwise we will be a small country, with many people - but we won’t be Bahamian.

GENERATION BAHAMIAN

Nassau,

February 6, 2012.

Comments

DDK 4 months, 1 week ago

Absolutely and very simply and clearly explained!

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jackbnimble 4 months, 1 week ago

You are wasting time. They are not listening. Their citizenship for votes campaign would be destroyed if they every fixed Article 7. Our strength as Bahamians are in our numbers. Unless we march in great numbers the problem will never be fixed.

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DaGoobs 4 months ago

Nice try. In the letter writer's mind he/she might think they're right but the position taken by them in their letter does not conform with what's actually in Article 7 of the Bahamas Constitution. There is no mention of whether the applicant for Bahamian citizenship under this Article or their parents are legally or illegally in the Bahamas at the time of the birth. There are 4 requirements under this Article: (1) the applicant, in order to be entitled to be registered as a Bahamian citizen, must be born in the Bahamas after 9th July 1973 to parents neither of whom are Bahamian citizens: (2) the applicant must make application for Bahamian citizenship commencing on their 18th birthday but not later than their 19th birthday in such manner as may be prescribed (by law, order, rules, regulations) to be registered as a Bahamian citizen; (3) if the applicant is a citizen of another country other than the Bahamas, they are not entitled to be registered as a Bahamian citizen unless (and until) they renounce their other citizenship, take the oath of allegiance (to the Bahamas) and make and register any declaration of the applicant's intentions concerning residence as nay be prescribed (by law, order, rules, regulations); (4) any application for registration as a Bahamian citizen under Article 7 is subject to such exceptions or qualifications as may be prescribed (by law, order, rules, regulations) in the interests of national security or public policy.

So although not specified in the Constiution, the only way that the "illegal" criminal analogies of not gaining any title in stolen property or losing one's assets if they are derived from the proceeds of crime apply is if they are prescribed exceptions or qualifications in the interests of national security or public policy in any law, order, rule or regulation affecting Bahamian citizenship. Similarly, the question of whether the applicant's parents or the applicant are illegally in the Bahamas would have to be an exception or qualification prescribed in the law, order, rule or regulation in the interests of national security or public policy as a basis for denying the applicant Bahamian citizenship.

I have never liked the wording of Article 7 as it is open to any number of abuses. The applicant should never have been "entitled ...... to be registered" as a Bahamian citizen, merely able to apply. Many persons who are registered as Bahamian citizens under this Article also retain their other citizenship and their other passport, maintain residences there, go "home" to vote, etc. The bottom line with this whole citizenship matter is that from 1973 the government should have had a written policy as to how they were going to approve or reject applications under this Article. Forty-plus years later I don't know that we have a solution and the letter writer's proposals do not seem to me to be the solution for either the parents or the children.

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joeblow 4 months ago

You are mistaken in your interpretation of article 7. The author above is correct!

Consider reading "Who has a right to be a citizen", immediately above the comments section here!

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