Attorney General Carl Bethel. (File photo)
By RASHAD ROLLE
Tribune Senior Reporter
THE Office of the Attorney General will appeal a groundbreaking Supreme Court ruling that children born in the country out of wedlock to Bahamian men and foreign women are citizens at birth and do not have to wait until 18 to apply for citizenship.
Attorney General Carl Bethel told The Tribune yesterday: “The ruling is very interesting. It will be appealed in the public interest.”
News of Justice Ian Winder’s ruling reverberated across the country yesterday. Michael Thompson, 34, said he can finally get a Bahamian passport for his eight-year-old child to visit his mother abroad if the ruling stands. And his mother––who said she is currently in the process of adopting her own grandchildren to pass her citizenship on to them––instantly broke down in tears discussing what this means to her.
A final judgement in the case that prompted Justice Winder’s ruling, however, has not yet been made––the trial has been adjourned until July for a hearing on whether the father of the applicants in the case are indeed Bahamian men. The applicants are represented by Wayne Munroe, QC.
Progressive Liberal Party leader Philip “Brave” Davis said he is persuaded by Justice Winder’s position.
“It’s a very sound and erudite decision and reasoning,” he said yesterday. “He departed from (former Chief Justice Sir Burton Hall) and I thought he gave some cogent reasons as to why he went the way he did.
“There’s some suspicion that it could have some deleterious effect on the country but I think not. As he indicated in his ruling, the question of whether a person has fathered a child is now easily verifiable through the technological advancements that mankind has made. You don’t have to rely on just the word of one or the other. You can establish it. If there are concerns that this could be abused, then domestic legislation could solve whatever mischief could arise.
“My recollection is when we were dealing with the referendum, it was supposed to cause laws to be passed to ensure there is some degree of certainty in proof of paternity. There are paternity tests, for example, and we can legislate that requirement as part of proving that you are the father once you’re not married. In place of swearing an affidavit to say you’re the father, something else could be put there.”
The question of whether Bahamian fathers of children born out of wedlock to non-Bahamian mothers could automatically pass citizenship on to their children was one of several raised in the constitutional referendum in 2016, but was rejected by Bahamians.
For his part, Mr Thompson said two of his children are born to different Haitian women. Somehow his first son was given a Bahamian passport, he said, but when it was time to renew the document he was denied.
“When he went to the officials, they said whoever the mother is, the police looking for her,” said his mother, who declined to give her full name.
“My son is a Bahamian, I’m a Bahamian, my mother’s mother was a Bahamian. Just why? Yesterday’s ruling really brought a lot. I was already in the process of adopting them, paperwork and everything are in the lawyers hand just so they would be able to have a fair shake like anyone else in this country born here to a Bahamian father. I was so emotional when I heard the news. When I heard it on the news I was like oh my god,” she said.
Justice Winder’s ruling focuses on whether a reference to “father” in Article 14 (1) of the Constitution is applicable when interpreting Article 6 of the document.
Mr Munroe brought the action, seeking 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, that his clients “are born to a Bahamian father and entitled to citizenship pursuant to Article 6 of the Constitution” and 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.”
Government lawyers argued that “the clear interpretation of Article 14(1) of the Constitution is that it applies to any provision which is capable of including the father,” Justice Winder noted. They relied on a ruling by former Chief Justice Sir Burton Hall in a case that was previously brought by Mr Munroe over a decade ago.
Justice Winder, ultimately, has departed from the former Chief Justice’s ruling. In essence, he argues that if drafters of the Constitution wanted Article 14 (1) to apply to Article 6, they would have referred more precisely to “father or mother” in Article 6, not “parents.”