In determining that all children born out of wedlock to foreign women and Bahamian men are citizens at birth, the Judicial Committee of the Privy Council has corrected what it determined was a misinterpretation of an important constitutional provision over the last 50 years, and dismissed as "absurd" certain arguments that were made on behalf of the attorney general who appealed a Court of Appeal ruling on this significant constitutional point.

The attorney general had contended that the constitution of The Bahamas does not confer citizenship of The Bahamas at birth on individuals in this circumstance.

Though the Privy Council rejected his arguments in this matter, Attorney General Ryan Pinder said in a statement, "The ruling is an important step towards ensuring equal citizenship rights for all children, irrespective of their parents' marital status. It is expected to impact the lives of many individuals in our country positively."

In its ruling, handed down yesterday, the Privy Council upheld the 2021 decision of the Court of Appeal, which affirmed the 2020 decision of Supreme Court Justice Ian Winder, now Chief Justice Sir Ian Winder.

The interpretation of two key constitutional provisions was at the crux of this case.

Article 6 states: "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."

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."

Justice Winder found that the use of "parents" in Article 6 was not an economy of drafting but intended to convey "the biological father or mother of the child unaffected by the artificial construct envisioned by Article 14(1)".

In his view, it was ultimately not a question of counting words but of meaning, the Privy Council noted.

In her judgment, Court of Appeal Justice Stella Maureen Crane-Scott determined that Winder was correct to employ a generous and purposive approach to the interpretation of Article 6.

Arguing on the attorney general's behalf, Thomas Roe, KC, contended that Article 14(1) of the constitution qualifies the reference to "parents" in Article 6.

Both in his written case and in his opening of the appeal, Roe placed at the forefront of his case the submission that the meaning to be given to the critical words in Article 6 - "either of his parents" - is "either his mother or his father (but in the latter case only if he was married to the mother)".

This, he submitted, is the right meaning as a matter of ordinary construction.

But the Privy Council contended that if it had been the intention to exclude from Bahamian citizenship a child born in The Bahamas whose Bahamian father was not married to the child's non-Bahamian mother, it would have been easy to have said so expressly as opposed to employing such a convoluted approach.

Moreover, the court said, if it had been intended to achieve that result by the modification of Article 6, it could have been achieved with much greater clarity by expressly referring to the child's father in Article 6 or, alternatively, by including a provision which expressly qualified the reference to "parents" in Article 6.

"The suggested reading contended for by the attorney general is cumbersome and faintly absurd," the Privy Council said.

"If 'parents' in Article 6 is to be read as 'father and mother', on the attorney general's submission, Article 14(1) would then qualify it so that it referred to 'mother and mother'."

The court said there is a sound explanation for the use in Article 6 of the term "parents" as opposed to "father and mother".

"It is, however, not one which assists the attorney general's case," the Privy Council said.

Edward Fitzgerald, KC, represented the respondents in the Privy Council case - Shannon Tyreck Rolle and four others; that is, the group of individuals born to Bahamian fathers and foreign mothers out of wedlock who brought the case before the Supreme Court.

The Privy Council agreed with Fitzgerald that the interpretation of Article 6 as put forth by the attorney general, would lead to some "anomalous results".

"First, it would frustrate the clear intention expressed by the words of Article 6, namely to confer automatic citizenship on every person born in The Bahamas after 9 July 1973 where at least one parent is Bahamian," the court said.

"Secondly, it would mean that the child of an unmarried Bahamian mother born in The Bahamas would have an entitlement to automatic citizenship whilst the child of an unmarried father also born in The Bahamas (whose paternity had been legally established) would have no such entitlement.

"Thirdly, the child of a Bahamian father where the mother is a non-citizen would be placed on the same footing as a child whose parents are both non-citizens. Both would have to wait until they had attained the age of 18 to make an application for citizenship pursuant to Article 7.

"This is sufficient to dispose of the submission on behalf of the attorney general. However, the Board also notes that the effect of the submission would be to read into Article 6 a discriminatory approach founded on the illegitimacy of the child and on which of its parents is a Bahamian citizen, thereby discriminating between the father and the mother.

"As has been shown, there is no requirement to adopt such a discriminatory reading of the provision. Moreover, the Board can see no possible justification for reading into the constitution such an approach reflecting, as it does, values which have long been rejected.

"Bahamian citizenship is an important and fundamental right and the provisions governing entitlement to citizenship are rightly entrenched in the constitution.

"In particular, Bahamian citizenship confers freedom of movement and access to The Bahamas. In the Board's view, there can be no justification for introducing restrictions on entitlement to this right of citizenship by reference to such arbitrary and discriminatory considerations when there is no requirement to do so."

Prior to yesterday's ruling, children born in The Bahamas out of wedlock to Bahamian fathers and foreign mothers were permitted to apply for citizenship at age 18.

Many waited years for their applications to be considered.

In two referendums — one in 2002 and another in 2016 — Bahamian voters were asked if they supported constitutional change to grant automatic citizenship to the children born out of wedlock to Bahamian men and foreign women.

In both instances, they voted against it.

The Privy Council's decision means that that particular referendum question was unnecessary as that right has existed since the coming into effect of the current constitution.

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