Friday, August 31, 2012

Constitutional reform, pt.3: ... ...The need for constitutional reform is most dramatically illustrated in the constitutional provisions dealing with citizenship

Constitutional reform, pt.3

Alfred Sears

The need for constitutional reform is most dramatically illustrated in the constitutional provisions dealing with citizenship.  Women are treated less favorably than men and, in practice; perhaps thousands of children born in The Bahamas of undocumented Haitian parents are denied their constitutional entitlement to citizenship under Article 7 of the Constitution.  The result is that these children are reduced to a condition of statelessness and marginalization, while foreign investors can purchase the predicate for citizenship, permanent residency, by investing a minimum of $500,000 or purchase a residence in The Bahamas for $1.5 million for accelerated consideration for permanent residency status.

Further, thousands of immigrants, primarily Haitian nationals, who have lived and worked in The Bahamas for decades, with Bahamian-born children, strong social and community ties in The Bahamas are denied a permanent legal status.  Why is it that the public policy of The Bahamas permits a foreign investor, with no permanent link to The Bahamas, to purchase permanent residency in The Bahamas for a minimum investment of $500,000, while an immigrant worker who gives decades of dedicated labor, with committed family ties in and contribution to the development of Bahamian civil society finds it difficult to secure permanent residency or citizenship?  Is it a question of race and class?  Why do we discriminate against immigrants from our sister Caribbean countries who give their labor for our development and often establish strong anchorage in and permanent links to our society, while we favor the foreign investor primarily from the United States or Europe who often is only here for the comparative advantage of trade and commerce?


Nationality and international law

The concept of national sovereignty is defined, in part, by control by a nation state over its territory, resources and people.  Membership in a political community or nation state is known as one’s nationality.  The citizen of a nation state gives her or his loyalty to the state in exchange for the diplomatic and other protections that the state affords all its nationals or citizens.  Under international law, states use certain principles to determine how one becomes a citizen of the state.  The three principles of nationality are:  Jus soli – where the place of birth determines nationality;  jus sanguinis – where the nationality of a child follows that of one or both parents, irrespective of the place of birth of the child; and naturalization – where one voluntarily assumes the nationality of another country.

Since World War II and the Nuremberg Trials, there has emerged a global bill of human rights, which imposes an obligation upon all states to treat aliens and citizens in a non-discriminatory manner.  The individual is now a proper subject of international law.

In the Nottenbohm Case (1955) 1 CJ 22, the International Court of Justice established a set of criteria for establishing nationality using the principle of the “genuine link” between the immigrant and the host country, using factors such as habitual residence of the individual concerned in the host country where the host country is the center of immigrant’s interest, the existence of family ties, participation in public life and attachment shown by the individual for the host country and inculcation of such attachment in her or his children.  By this set of criteria, many of the Haitian nationals in The Bahamas may have a claim for nationality in The Bahamas.

Professor Ian Brownlie describes this concept of the genuine link as “prima facie the effective nationality of the host state.”  Many of the Haitian immigrants in The Bahamas may qualify for Bahamian citizenship, pursuant to the Nottenbohm criteria, by their habitual residence in The Bahamas, The Bahamas is the center of their economic and social interests, their Bahamian spouses, Bahamian born children and their engagement in Bahamian civil society, such as active membership in churches.  While we must effectively police our borders to stop the flow of illegal immigration, the regularization of those immigrants with a genuine link to The Bahamas should be given the priority to ensure compliance with the Constitution and international humanitarian law.


Nationality by birth, descent, marriage and naturalization

The Constitution of The Bahamas, Chapter II, uses the three principles of jus soli, jus sanguinis and naturalization in relation to citizenship.

Under Article 3, every person, who had been born in the former Colony of the Bahama Islands and was a citizen of the United Kingdom or if his or her father would have become a citizen of The Bahamas or was a citizen of the United Kingdom by virtue of his or her having been registered in the former Colony of the Bahama Islands under the British Nationality Act, became a citizen of The Bahamas on July 10, 1973.

Under Article 4, with limited exceptions, every person who had previously been naturalized under the British Nationality Act in the former Colony of the Bahama Islands became a citizen of The Bahamas on July 9, 1973.

Article 5 of the Constitution entitles a woman to citizenship who, on the July 9, 1973 is or has been married to a citizen by virtue of Article 3 or whose husband died before July 10, 1973 but would, but for his death, have become a citizen of The Bahamas, provided that she applies, takes the oath of allegiance and renounces her previous citizenship.

Every person born in The Bahamas after July 9, 1973, under Article 6, shall become a citizen of The Bahamas at the date of her or his birth if at that date either of her or his parents is a citizen of The Bahamas.

Under Article 7, a person born in The Bahamas after July 9, 1973 neither of whose parents is a citizen of The Bahamas shall be entitled, upon making application on her or his attaining the age of 18 years within 12 months thereafter in such manner as may be prescribed, to be registered as a citizen of The Bahamas provided her or his previous nationality is renounced, she or he takes the oath of allegiance and declares an intention to reside in The Bahamas.

It is under this provision that the children of undocumented Haitian nationals are guaranteed Bahamian nationality.  The United States Supreme Court in the case Pyler v. Doe (1981) 457 U.S. 223 invalidated a discriminatory law adopted by the Texas legislature which had withheld funds from local school districts that enrolled children who were not legally admitted into the United States.  Justice Powell wrote: “The classification at issue deprives a group of children of the opportunity for education afforded all other children simply because they have been assigned a legal status due to a violation of law by their parents.  These children thus have been singled out for a lifelong penalty and stigma.  A legislative classification that threatens the creation of an underclass of future citizens and residents cannot be reconciled with one of the fundamental purposes of the Fourteenth Amendment... But it can hardly be argued rationally that anyone benefits from the creation within our borders of a subclass of illiterate persons many of whom will remain in the state, adding to the problems and cost of both state and national governments attendant upon unemployment, welfare and crime.”

However, in The Bahamas, in spite of the clear constitutional entitlement under Article 7, there are hundreds and perhaps thousands of young persons who have applied to be registered as Bahamian citizens under this category and have not been registered as citizens of The Bahamas.  The problem, in part, is the absence of clear policy guidelines for the processing of these applications.  Therefore, the Passport Office and the Department of Immigration lack the proper procedural directives and adequate resources to enable these agencies to process these applications in a prompt and efficient manner.  This ambivalence by the Bahamian public policy towards the treatment of the children of Haitian immigrants is to be contrasted with the clear National Investment Policy with respect to granting of accelerated consideration for permanent residency to foreign investors and foreign purchasers of a second residence in The Bahamas.


Discrimination against Bahamian women

The discriminatory treatment of Bahamian women is reflected in Articles 8 and 9 in particular.  Under Article 8, a child born outside of The Bahamas after July 9, 1973 to a Bahamian father, inside of a marriage, shall become a Bahamian citizen automatically at the date of birth.  Whereas, under Article 9, a child born outside of The Bahamas after July 9, 1973, to a Bahamian mother married to a non-Bahamian father, is not automatically a Bahamian citizen at birth.  To become a Bahamian citizen, such a person must:

1) Make application upon attaining the age of 18 years and before the age of 21 years to be registered as a citizen of The Bahamas;

2) Renounce or make a declaration with respect to any other citizenship;

3) Take the oath of allegiance to The Bahamas;

4) Make and register a declaration of her/his intention to reside in The Bahamas; and

5) Have been born legitimately.

Even after fulfilling these five requirements, such a person can still be denied citizenship on the bases of national security or public policy.  These disabilities on a child born outside of The Bahamas to a Bahamian woman married to a non-Bahamian husband constitutes invidious discrimination, when automatic citizenship is conferred at birth upon the child born outside of The Bahamas to a Bahamian father married to a non-Bahamian spouse.

Further, Bahamian women are treated less favorably than Bahamian men in granting Bahamian citizenship to their respective spouses.  Under Article 10 of the constitution, any women who marries a person who wishes to become a Bahamian citizen after July 9, 1973 shall be entitled to be registered as a Bahamian citizen, provided she makes an application, takes the oath of allegiance or makes a declaration and that there is no objection on the bases of national security or public policy.  No such requirement is demanded of foreign spouses of Bahamian men.

Under Article 11, the governor general may deprive a person of Bahamian citizenship if the governor general is satisfied that any citizen of The Bahamas has at any time after July 9, 1973 acquired the citizenship of another country or voluntarily claimed or exercised rights in another country which are exclusively reserved for the citizens of that country.


• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.  Next week will focus on the recommendations for these parts of the constitution.

Aug 30, 2012