Constitutional reform - pt. 12... ...I therefore recommend that Article 23 of the constitution be amended to include a specific guarantee for freedom of the press ...in order to better protect the community’s interest in integrity in public administration ...through robust scrutiny by an independent press

Constitutional reform pt. 12

Freedom of expression

By Alfred Sears

In a democratic society there is no greater right than the right of citizens to know what the government is doing on their behalf, which includes the right to hold opinions, to receive and express ideas and information without interference.  The constitution guarantees our right to freely express ourselves by engaging in open political debate amongst ourselves as well as to engage in political discourse with our elected officials and with candidates who offer themselves for public office.

Article 23 of the constitution guarantees freedom of expression to every person in The Bahamas that provides that:

1. Except with his consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purpose of this article the said freedom includes freedom to hold opinions, to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

2. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question makes provision –

(a) which is reasonably required –

(i) in the interest of defense, public safety, public order, public morality or public health; or

(ii) for the purpose of protecting the rights, reputations and freedom of other persons, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating telephony, telegraphy, posts, wireless, broadcasting, television, public exhibitions or public entertainment; or

(iii) which imposes restrictions upon persons holding office under the Crown or upon members of disciplined force, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

This guarantee is meaningless unless there is reasonable access to the broadcast media and protection of the media.  Therefore, the issuance of private broadcast licenses in The Bahamas beginning around 1994 has allowed greater freedom of expression in The Bahamas.

The Court of Appeal of Belize in the Belize Broadcasting Authority v. Courtenay (1986) 38 WIR 79, dealing with a provision, identical to Article 23 of the Bahamian Constitution, under the Constitution of Belize, held that to broadcast on radio and television is “today an integral part of the freedom of expression and to place the need for the authority’s consent before one can do what is an integral part of the freedom constitutes a hindrance to that freedom.”  Access to the broadcast media is especially important in an archipelago, like The Bahamas, where people are scattered over many different islands separated by a wide expanse of water.

The Privy Council has held that fear of criticism cannot justify hindering the public access to the broadcast media and access to the broadcast media by political opponents.  In the case Hector v. Attorney General of Antigua and Barbuda (1990) 2 All E. R. 103, per Lord Bridge, held that: “In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism.  Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.  At the same time it is no less obvious that the very purpose of criticism leveled at those who have the conduct of stewardship is to persuade the electorate that the opponents would make a better job of it than those presently holding office...”.

In the United States, the First Amendment of the constitution declares that the Congress shall not abridge the freedom of the press.  However, in the Constitution of The Bahamas, there is no specific mention of the press or the guarantee of press freedom.  In The Bahamas, the laws of defamation and a fear of offending a prime minister or other elected officials often places a restraint on robust investigative reporting on politically sensitive matters.  A number of journalists in The Bahamas have been prosecuted, sued or threatened with prosecution for criticizing aspects of the public administration in The Bahamas.  The community interests, integrity and honesty in public administration can be compromised when the people and the press do not enjoy absolute privilege to criticize public officials.  This privilege should include matters of public concern, public officials and candidates for public office.  As the United States Supreme Court stated, in the case New York Times Co. v. Sullivan, debate on public issues should be uninhibited, robust and wide open and may well include vehement caustic and sometimes unpleasant sharp attacks on government and public officials, an occasional erroneous statement is inevitable in free debate.  Save and except in cases of malice, the press should be unfettered in its criticism and scrutiny of public administration in The Bahamas.

I therefore recommend that Article 23 of the constitution be amended to include a specific guarantee for freedom of the press in order to better protect the community’s interest in integrity in public administration through robust scrutiny by an independent press.

• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.

Nov 08, 2012

thenassauguardian

Caribbean Blog International

Constitutional reform - pt. 11... ...The supreme law clause of the constitution should be strengthened in the following ways: ...(a) by granting to the courts the power to review legislation to ensure consistency with the constitution... ...(b) by conferring legal standing to citizens of The Bahamas, in their own interest ...or as part of an association or interest group ...to initiate a constitutional challenge with respect to the validity of any legislation that they consider to be inconsistent with the constitution

Constitutional reform - pt. 11... ...The supreme law clause of the constitution should be strengthened in the following ways: ...(a) by granting to the courts the power to review legislation to ensure consistency with the constitution... ...(b) by conferring legal standing to citizens of The Bahamas, in their own interest ...or as part of an association or interest group ...to initiate a constitutional challenge with respect to the validity of any legislation that they consider to be inconsistent with the constitution

Constitutional reform pt. 11

By ALFRED SEARS

Chapter one of the constitution states that the constitution is the supreme law of The Bahamas in the following terms: “This Constitution is the supreme law of the Commonwealth of The Bahamas and, subject to the provision of this constitution, if any other law is inconsistent with this constitution, this constitution, shall prevail and the other law shall, to the extent of the inconsistency, be void.”

In a political culture where the political directorate is perceived to be the highest law of the land, it is the constitution which is the supreme law and should any other law be inconsistent, that other law would be declared null and void and of no effect.  The prime minister, the Cabinet and Parliament are subject to the constitution and any executive action which contravenes a provision of the Constitution can be declared to be null and void and of no effect by the Supreme Court.

The Supreme Court, the Court of Appeal or the Judicial Committee of the Privy Council, through the power of judicial review, can examine any law passed by the Parliament or any action by the executive branch of government to determine whether it is consistent with the constitution.  If it were found that a law or an action by the executive branch is inconsistent with the constitution, the court can declare it unconstitutional and award a remedy to the aggrieved person.

A case

The supremacy of the constitution was dramatically affirmed in the case D’Arcy Ryan v. Attorney General (1977).  In this case, Ryan had applied to become a citizen of The Bahamas on October 24, 1974, pursuant to Article 5 of the constitution.  Ryan had been living in The Bahamas as his primary residence from 1947 and received belonger status in 1966.  He was married to a citizen of The Bahamas and all of his seven children of the marriage had been born in The Bahamas.  Ryan was informed on June 16, 1975 that the minister of home affairs had refused his application.  The minister gave no reason for his refusal of the application.  Ryan instituted legal proceedings in the Supreme Court seeking a declaration that upon the true construction of the constitution he was entitled to be registered as a citizen of The Bahamas and that section seven of the Bahamas Nationality Act, 1973 and was ultra vires the constitution.  Two justices, sitting as a division of the Supreme Court, held that the purported decision of the minister was a nullity and referred the matter back to the minister to be reconsidered in accordance to law.  The attorney general appealed the decision of the Supreme Court to the Court of Appeal.  The Court of Appeal held that section seven (a) – (e) of the Bahamas Nationality Act was not ultra vires, but that the proviso thereto was ultra vires the constitution, as it did not prescribe any ground on which the minister could base his refusal.  The Court of Appeal found that the minister’s refusal to grant Ryan’s application for citizenship was therefore a nullity.  The attorney general appealed the decision of the Court of Appeal to the Privy Council.  Lord Diplock, writing for the Privy Council in 1979, held that: “Their Lordships accordingly propose humbly to advise Her Majesty that for the single declaration made by the Court of Appeal, the following declarations as to the several questions of law that have been raised by these proceedings should be made:

(1) A declaration that the minister’s decision of 28 May 1975 to refuse the plaintiff’s application dated 27 June 1974 for registration as a citizen of The Bahamas is null and void.

(2) A declaration that the final words of the proviso to section seven of The Bahamas Nationality Act, 1973, viz: ‘or if for any other sufficient reason of public policy he is satisfied that it is not conducive to the public good that the applicant should become a citizen of The Bahamas’ are inconsistent with the Constitution of the Commonwealth of The Bahamas and are void.

(3) A declaration that the plaintiff is entitled to have his application for registration as a citizen of The Bahamas dated 27 June 1974 reconsidered by the minister according to law, as it has been stated in their lordships’ reasons for their humble advice to her majesty in this appeal.”

The Ryan case demonstrates that the court, if inconsistent with the constitution, can declare ministerial decisions, null and void.

Notwithstanding the clear direction by the Privy Council in 1979 that Ryan should be given Bahamian citizenship as a matter of constitutional entitlement, the government did not issue Ryan a Bahamian passport until 1993.  This case illustrates the need for citizens in a democratic society to be vigilant to ensure that the guarantees enshrined in the constitution are in fact observed by the state.

Recommendation

The supreme law clause of the constitution should be strengthened in the following ways:

(a) by granting to the courts the power to review legislation to ensure consistency with the constitution;

(b) by conferring legal standing to citizens of The Bahamas, in their own interest, or as part of an association or interest group, to initiate a constitutional challenge with respect to the validity of any legislation that they consider to be inconsistent with the constitution.

• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.

Nov 01, 2012

thenassauguardian

Caribbean Blog International

Constitutional reform - pt. 10... ...The government should commission The College of the Bahamas and the Eugene Dupuch Law School to conduct a scientific study to determine the comparative deterrence between the death penalty and life imprisonment ...to inform public education and policy on the issue of the death penalty... ...

Chief Justice Sir Michael Barnett... ...the Constitution Commission ... and the comprehensive review of the constitution of The Bahamas...

Constitution Questions

By SANCHESKA BROWN

Tribune Staff Reporter

sbrown@tribunemedia.net

CHIEF Justice Sir Michael Barnett met with the members of the Constitution Commission yesterday to advise them on what issues they should discuss over the next six months.

 

Prime Minister Perry Christie appointed the 13-member committee in August to conduct a comprehensive review of the constitution of the Bahamas and recommend changes to it in advance of the country’s independence anniversary next year.

 

One of those changes, according to Sir Michael, would be to review the requirements of the justices in the Court of Appeal - which he said were causing a lot of good judges to be overlooked.

 

“One of the matters I thought was a bit surprising was a requirement for the Court of Appeal that a judge of the court must have to have prior judicial experience before he could be appointed to the Court Of Appeal,” he said.

 

“I have not found that provision in any other jurisdictions and I am a bit surprised that they would put such a restriction on the appointed justices because it excluded a lot of persons who would otherwise be eligible and who would otherwise serve as suitable judges of the Court of Appeal. While the requirement of prior judicial experience is laudable I am surprised they would require it as a pre requisite.”

 

Sir Michael, who served as Deputy Chairman of the last Constitutional Committee, reminded the members that full public support was needed for any provisions or they would be overlooked - like the last two referendums.

 

He said: “There were two previous attempts at amending the constitution since 1973; one in early 1981 and the other in 2002. Both were unsuccessful. Many of the provisions can not be amended without public approval, you must bear in mind that any proposal for change must be able to receive widespread public support.”

 

Sir Michael said he did not believe the upcoming referendums would fail - because it is a different time.

 

“The circumstances in 2002 and 1981 are radically different from the circumstances in 2012 and 2013. I have also never been persuaded by the argument that the referendums failed because the public did not have sufficient information to make an intelligent decision but that is something for the historians to look at,” he said.

 

This was the commission’s second meeting.

 

According to the Prime Minister, the commission will concentrate on examining anti-discrimination and fundamental rights provisions in the Bahamas constitution, but also citizenship-related questions.

 

He said: “It is anticipated that the new commission will pay particular attention to the need to strengthen the fundamental rights and freedoms of the individual, including the need to end gender-based discrimination against women consistent with the United Nations conventions and more enlightened views that have developed globally since the attainment of our independence.”

 

Mr Christie also said the commission was expected to examine complex questions relating to the regulation of the relationship between state power and the individual, the retention and enforcement of capital punishment, whether the Bahamas should remain a constitutional monarchy or evolve into a republic and whether if the Caribbean Court of Justice or perhaps final court in the Bahamas should replace the Judicial Committee of the Privy Council as the final court of appeal under our constitution.

 

Additionally, questions relating to the Bahamas’ political system will arise for constitutional review, said Mr Christie. Among these include whether there should be constitutionally fixed dates for the general elections, whether there ought to be fixed term limits for prime ministers and members of Parliament, whether the electorate should be vested with limited rights to recall their MPs and what powers should be vested in the Attorney General or if a constitutionally independent Director of Public Prosecutions should be established.
Members of the commission will include former Attorney General Sean McWeeney, who will be chairman; Loren Klein, Carl Bethel, Justice Rubie Nottage (retired), Mark Wilson, Lester Mortimer, Tara Cooper-Burnside, Michael Stevenson, Dr Olivia Saunders, Michael Albury, Chandra Sands, Brandace Duncanson and Carla Brown-Roker.
The commission is expected to report its recommendations to the government by the end of March 2013.

 

October 05, 2012

 

Tribune 242

 

Caribbean Blog International

Constitutional reform, pt. 5: ... ...In interpreting the Constitution of The Bahamas, the Court should give a generous interpretation to the constitutional provisions ...and avoid “the austerity of tabulated legalism”... ...In an open democratic society, the protection of human rights is not just the business of judges and lawyers... ...It is everyone’s business... ...As noted by Professor Lung-Chu-Chan, human rights can flourish, only when every member ...and every sector of the community is vigilant in defending and protecting them

Constitutional reform, pt. 5

By Alfred Sears

For the average person in The Bahamas, the most important part of the constitution is chapter III, which deals with the protection of fundamental rights and freedoms of “every person in The Bahamas”.  The constitution makes no distinction between citizens and aliens in relation to fundamental rights.  The fundamental rights, under article 15, are summarized as right to:

(a) Life, liberty, security of the person and protection of the law;

(b) Freedom of conscience, of expression and of assembly and association and;

(c) Protection for the privacy of his home and other property without compensation.

The rights, through articles 15 through 28, are stated broadly followed by varying degrees of exceptions or derogation clauses.  These provisions are known as the Bill of Rights.  The guarantees provided under the Bill of Rights are not static, but represent a continuing process of judicial decisions from the past to the present, in protecting our fundamental values of human dignity.  These guarantees are so highly cherished that they are deeply entrenched in our constitution; they can only be changed, pursuant to article 54 (3), through three quarters of all members of each house of Parliament and by a majority vote in a referendum of the Bahamian electorate.  The Bahamian Bill of Rights is part of the global development of international human rights law.

The Constitution of The Bahamas, like the constitutions of other Commonwealth Caribbean countries, was patterned after the Nigerian Independence Constitution and Bill of Rights of 1957, which itself was patterned after the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1953.

 

Emergence of international human rights law

Before World War II how a government treated its own citizens was a matter of purely national concern.  The individual citizen was not considered a proper subject of international law.  However, the treaties concluded by the Allied countries with Germany, Italy, Japan and the Central European countries following World War II imposed obligations to respect human rights.

In the Nuremberg trials, political and military leaders who had acted in the name of the state were held personally responsible and punished for crimes against humanity.  For the first time national leaders were held accountable to an international tribunal for how they had treated their own citizens.

International human rights law was further strengthened by the international human rights conventions ratified after World War II.  For example, the preamble of the United Nations Charter states: “We the peoples of the United Nations determine to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom... .”

The charter, in article 1, sections 2 and 3, state the purposes and principles of the United Nations are: “2. To develop friendly relations among nations based on respect for the principles of equal rights, self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

“3. To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for the fundamental freedoms for all without distinction as to race, sex, language, or religion.”

Furthermore, article 55 states: “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: ...c. universal respect for, and observance for, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”

Article 56 posits a general obligation for member states to enforce human rights: “All Members pledge themselves to take joint and separate action in co-operation with the organization for the achievement of the purposes set forth in article 55.”

The term “pledge” in article 56 has been interpreted by the International Court of Justice, in its 1971 Namibia Judgment (1971 I.C.J 16), to mean that member states of the United Nations have accepted an international obligation to observe the Global Bill of Human Rights and that the provisions of the charter of the United Nations Charter are directly binding on member states.

This international observance of and respect for human rights is assumed as a necessary condition for international peace and security.  This assumption is also reflected in the Universal Declaration of Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination of 1965, the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights.  Professors McDougal and Riesman have argued that the Universal Declaration, in particular, is now jus cogens, or part of customary international law.  The Bahamas, since its independence on July 10, 1973, has ratified all of these instruments and, therefore, has an obligation under international law to observe the human rights standards established by these international instruments.

Professors McDougal, Lasswell and Chen in the book “Human Rights and World Public Order” have posited that these instruments constitute a global bill of human rights that are now part of customary international law and reflect basic international community policies of the world constitutive process, crystallized in a norm of non-discrimination.

 

Enforcement of the bill of rights

Under the Bahamian Constitution, the Supreme Court is given plenary powers to issue orders, writs and directions it may consider appropriate for the enforcement of the Bill of Rights.  Article 28(1) provides: “If any person alleges that any of the provisions of articles 16 to 27 (inclusive) of the of the constitution has been, or is being or is likely to be contravened in relation to him then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.”

Therefore, the Supreme Court, through the power of judicial review, is the ultimate guardian of the freedoms and rights of the individual in The Bahamas and the arbiter of the meaning of the constitution as the supreme law of the land.

The court, informed by this evolving international human rights law, has to give vitality and meaning to constitutional provisions, which are framed, in a high level of generality.  Through judicial interpretation, therefore, that the constitution becomes a living document, constantly evolving in response to the changing circumstances, needs and demands of the Bahamian society.  The Privy Council has constantly held that our courts should take a contextual, rather than a textualist, approach in interpreting and applying constitutional provisions to concrete cases.

The Privy Council in the case Ministry of Home Affairs v. Fisher (1980) AC 319 held that our courts should have full regard for this evolving international human rights law when interpreting our Bill of Rights.  In this case, a Bermudian man had married a Jamaican woman who brought her children, who had been born out of wedlock, to Bermuda.  Under the Bermudian Constitution, a stepchild of a citizen was entitled to Belonger status.  The Crown contended that an illegitimate person could not benefit under the stepchild provision because there was a legal presumption that the word “child” in legislative and other formal documents connotes “legitimate child”.

Lord Wilberforce, writing for the majority of the Privy Council, reasoned that since the Constitution of Bermuda was influenced by the human rights norms in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the United Nations Declaration of Human Rights and the fact that the Bermudian Constitution uses the phrase “every person” in its Bill of Rights enabled the conclusion that the term “child” meant any child and was not restricted to legitimate child.  Specifically, Lord Wilberforce held that: “...Chapter I is headed ‘Protection of Fundamental Rights and Freedoms of the individual’.  It is known that this chapter, as similar portions of other constitutional instruments drafted in the post-colonial period, starting with the Constitution of Nigeria, and including the constitutions of most Caribbean territories, was greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms.  That convention was signed and ratified by the United Kingdom and applied to dependent territories including Bermuda.  It was in turn influenced by the United Nations Universal Declaration of Human Rights 1948.  These antecedents, and the form of Chapter I itself, call for a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism’, suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.”

In interpreting the Constitution of The Bahamas, the Court should give a generous interpretation to the constitutional provisions and avoid “the austerity of tabulated legalism”.  In an open democratic society, the protection of human rights is not just the business of judges and lawyers.  It is everyone’s business.  As noted by Professor Lung-Chu-Chan, human rights can flourish, only when every member and every sector of the community is vigilant in defending and protecting them.

Over the course of the next several articles of this series, I will examine and critically appraise the individual rights and freedoms of our Bill of Rights and make certain recommendations for reform for the expansion and the more effective protection of our fundamental rights, consistent with the evolving global Bill of Rights.

 

• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.

Sep 20, 2012

thenassauguardian

Constitutional reform, pt. 4: ... ...I now offer some recommendations for consideration in the reform of Chapter 2 of the Bahamian Constitution

Constitutional reform, pt. 4

By Alfred Sears

In part 3, I described the instances of unequal and discriminatory treatment of Bahamian women citizens who are married to non-Bahamian spouses and their children born outside of The Bahamas; and the condition of statelessness which results when children born in The Bahamas, neither of whose parents are citizens of The Bahamas, are not regularized in a timely fashion.  I now offer some recommendations for consideration in the reform of Chapter 2 of the Bahamian Constitution.

 

Recommendations

The citizenship provisions of the Constitution should balance the principles of (1) careful control of national membership in the Bahamian nation; (2) a recognition of the human rights claim of those who have a genuine link to The Bahamas; and (3) the competition within the global marketplace amongst countries to attract and maintain the human resources of the world.  The most critical resource in The Bahamas, I contend, is the people.  The talent, creative imagination and intellectual production of the Bahamian people and residents are the critical factors that will determine whether The Bahamas realizes its full potential.

Therefore, we should be inclusive in our citizenship policies, giving all persons who have a genuine link to The Bahamas the security of a legal status to inspire in them a sense of loyalty to The Bahamas and a desire to make their best contribution to the development of The Bahamas.  In this context, I therefore recommend that the citizenship provisions of our Constitution be amended in the following respects:

1. That all gender discrimination be removed from the citizenship provisions, especially with respect to the non-national spouses of Bahamian women and their children born outside of The Bahamas.  Bahamian men and women should be treated equally in all respectS under the citizenship provisions of the constitution.  The norm of nondiscrimination should be the guiding principle as we reconstruct the constitution.

2. The protection of the status of children and the avoidance of statelessness amongst children in The Bahamas should inform the citizenship provisions of the constitution dealing with children.  Therefore, children born in The Bahamas should be deemed citizens at birth where at least one parent is a citizen of The Bahamas, a permanent resident, an immigrant on work permit or is registered under the Immigration Act 1967.  Further, a child under five years found in The Bahamas, whose parents are not known, should be presumed to be a citizen of The Bahamas by birth.  Like the 14th Amendment of the United States Constitution and Article 5 of the Constitution of Jamaica, which grant citizenship to all persons born in the United States and Jamaica, we should retain and strengthen Article 7 of the Bahamian Constitution so that children born in The Bahamas, neither of whose parents are citizens, are given citizenship at birth.  We should not punish children for the illegal conduct of their parents.

3. Also children born overseas to a citizen of The Bahamas serving in a diplomatic or consular capacity should be recognized as citizens by birth.

4. The constitution should be revised to recognize dual and multiple citizenship.  Increasingly more Bahamian nationals are residing outside of The Bahamas, particularly in the United States.  These Bahamians have benefited from obtaining the citizenship of other countries.  Some may argue that dual and multiple nationalities may affect the security of The Bahamas, such as facilitating the fraudulent use of passports, the commission of major crimes, the provision of safe harbor for fugitives and the smuggling of would-be immigrants.  While these concerns must be carefully considered, I believe that the Bahamians across the diaspora have always shown an unswerving patriotism towards The Bahamas.

Bahamians have always sought self-improvement and increased opportunities in other countries without losing their loyalty to The Bahamas and their sense of national pride.  This was reflected in the “Project” during the 1940s and 1950s when thousands of Bahamian men and women worked as migrant workers in the United States.  Today thousands of Bahamians reside outside The Bahamas in pursuit of higher education and professional opportunities.  In fact, the Bahamian diaspora should be perceived and used as a critical source of influence, investment and remittances in the international community to advance the Bahamian strategic development, security and global brand.

Dual and multiple nationalities would not, in my opinion, undermine the loyalty Bahamians have to The Bahamas.  Further, several Commonwealth Caribbean countries as well as the United States provide for multiple and dual citizenship.  Moreover, The Bahamas tacitly recognizes dual citizenship of its citizens, as is evidenced by Article 8 where a person born outside of The Bahamas to a Bahamian father becomes a Bahamian citizen at birth and in the note contained in the Bahamian passport, which states that: “Citizens of The Bahamas who are also nationals of another country cannot avail themselves of the protection of the representatives of The Bahamas against the authorities of that country, and are not exempt, by reason of possessing Bahamian citizenship, from any obligation (such as military service) to which they may be liable under the law of that country.”

5. Section 16 of the Bahamas Nationality Act says the minister “shall not be required to assign any reason for the grant or refusal of any application or the making of any order under this act the decision upon which is at his discretion; and the decision of the minister on any such application or order shall not be subject to appeal or review in any court”.  This ouster clause does not mean that the minister should not act in accordance with the rules of natural justice.  Given the fundamental importance of decisions relating to nationality, the discretion of the minister responsible for nationality and citizenship relating the determination of applications for registration or naturalization should be subject to judicial review and no person should be deprived of her/his citizenship without due process of law.

5. Finally, Chapter 2 of the constitution dealing with citizenship should be expressed in more readily understandable form and the language and structure should be simplified.

 

• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.

Sep 13, 2012

thenassauguardian

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

thenassauguardian