Changing course

Sun, Aug 10th 2014, 11:24 PM

While the government has announced that the four constitutional referendum bills will not be retroactive, Chairman of the Constitutional Commission Sean McWeeney revealed to National Review that the Christie administration may have to change course in this regard and make them retroactive.
This would be a major amendment to the referendum bills which were tabled in the House of Assembly just over two weeks ago, and are already attracting significant opposition from various quarters.
"I think it definitely is already being looked at by both the political parties (PLP and FNM) and the Constitutional Commission," said McWeeney when asked about making the bills retroactive.
McWeeney also explained why the government's initial position was not to make the proposed constitutional changes retroactive.
"I think one of the major concerns that have been expressed is that when it comes to granting something as precious as citizenship, you should at least have some idea of how many people you're giving it to.
"And this to some extent is a shot in the dark because remember we're talking about granting citizenship retroactively, automatically. There's no need to apply. You don't know who's getting it, how many people are getting it.
"That's the first thing, and you're talking about 41 years of Bahamian women really who were married to non-Bahamians who had children outside The Bahamas and we have no idea how many people we're talking about."
McWeeney said he tried to get rough calculations in this regard from the Department of Statistics.
"They told me very candidly, they had no way of knowing," he said.
"It's not something which is a part of the tabulations that they do."
Asked what the implications are of not knowing how many people would be impacted by the retroactive provision, McWeeney said, "Think about the fact that we're a very small country, 350,000 people. How many people are we talking about?
"If we start off with the premise that citizenship is the most precious gift you can have for a nation, shouldn't you have some idea of how many people enjoy the gift, instead of just with the stroke of the pen conferring it upon an indeterminate number of people, who you don't even know who they are?"
McWeeney said, since the bills were published two weeks ago, the governing party and the Official Opposition got a lot of feedback from people who have been personally affected by the decision not to make the bills retroactive.
These people were looking forward to the liberalization of the law, the chairman said.
"They have children already in this category [where there is no automatic right to citizenship] and I think they see that there is a difference in getting it under the administrative policy that the prime minister has promised, on the one hand, instead of getting it automatically under the constitution," he said.
"The major difference is that if you get it under the administrative policy, you have to renounce any other citizenship that you have, whereas if you got it automatically, you wouldn't have to renounce."
Liability
The prime minister is hoping for bi-partisan support for the four bills before the House.
The first bill would give a child born outside The Bahamas to a Bahamian-born mother and non-Bahamian father the same automatic right to Bahamian citizenship that the constitution already gives to a child born outside The Bahamas to a Bahamian-born father and a non-Bahamian mother who is his wife.
The second bill seeks to enable a Bahamian woman who marries a foreign man to pass on her Bahamian citizenship to him. However, the bill will still outlaw marriages of convenience. As it stands now, a Bahamian man is able to pass on his citizenship to his foreign wife.
The third bill seeks to reverse the law that prohibits an unwed Bahamian man from passing his citizenship to his child if he or she is born to a foreign woman. It would require proof of paternity.
The final bill seeks to make it unconstitutional for any law or any person acting in the performance of any public office to discriminate based on sex.
Last Wednesday, Minister of State for Legal Affairs Damian Gomez explained why the decision at that point was not to make the bills retroactive.
"What we're saying is that at present, we have no definitive estimate of the effect that a retroactive provision would have on our population size and in treating applications of persons who would fall in the category that are to be...provided for, but who were born between 1973 and now," Gomez said.
"From a policy perspective, we will be better able to manage the situation."
As for the cost, Gomez said, "There are persons who have been paying work permit fees. If it's retroactive those fees then become refundable.
"In the current fiscal situation that we're in that's not a feasible thing to do. By adopting the course that we are adopting we are able to confer citizenship on those persons on a case-by-case basis without incurring any liability to them in relation to refunds. So that's a practical solution, which we're adopting.
"We don't want to incur a large liability, which then has to be paid for, ultimately at the expense of taxpayers".

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