|
|
|
|
Last Updated: Feb 13, 2017 - 1:45:37 AM |
Equality Bahamas: In 2012, The Rt. Hon. Perry Christie announced the appointment of the new Constitutional Commission charged with a comprehensive review of the Constitution of The Bahamas by March 2013 - ahead of the 40th year of Independence celebration. Chairman Sean McWeeney QC and Chief Counsel Loren Klein led the Commission of 11 other members in the process which included public consultation.
What did the Constitutional Commission’s Report recommend?
The Report of the Constitutional Commission into a Review of The Bahamas Constitution was released in July 2013 with Section 4 listing 73 recommendations. In the previous section, “the amendment of the citizenship provisions to achieve gender-neutrality and full equality between men and women with respect to the acquisition or transmission of their nationality” is at the top of the list of priorities for reform.
The constitutional referendum on this item was set for November 6, 2014 and was delayed several times before the announcement of the June 7, 2016 referendum. During this time, the Constitutional Commission held public information sessions on the four proposed constitutional amendment bills, and civic society organizations including Equality Bahamas participated in public discussions on the bills and the pending referendum.
Why is a referendum necessary to make the changes suggested by the Constitutional Commission?
The Bahamas Constitution is supreme law and makes void any other law inconsistent with it. This means no act of legislation can be upheld if it is in contravention with the It serves to establish fundamental principles for governance and can be amended through the process prescribed in Article 54. The process includes reading amendment bills, voting on the bills in the House of Assembly and the Senate, each requiring a 75% vote to move forward, and a binding referendum requiring a simple majority - 50% plus one vote - to be passed.
Are these gender equality or citizenship bills?
The four constitutional amendment bills have been dubbed both “gender equality bills” and “citizenship bills” over the past two years, but the four bills seek to make changes to Articles 8, 10, and 14 to allow Bahamian women and men pass on citizenship to their children and spouses in the same way and to add sex to the prohibited grounds of discrimination in Article 26 so that no law may discriminate on the basis of sex.
How can we be sure the results of the referendum will be honored by the Government of The Bahamas?
The June 7, 2016 referendum is necessary to complete the process for constitutional amendments, a simple majority being the only way the changes outlined in the bills will be made. As this referendum is on constitutional amendments - not a legislative issue like gaming - it is binding and the Government of The Bahamas is required to act as prescribed by the majority vote.
Who is eligible to vote?
Those who registered to vote in the 2012 election or registered before May 25, 2016 are eligible to vote in the referendum. Advanced polling will take place on May 31, 2016 for those who submitted a Form J or Form K in application for a Special Voter Certificate by May 20, 2016.
- - - - - - -
Bill #1 seeks to allow Bahamian women married to non-Bahamian men to pass on citizenship to their children born outside of The Bahamas.
What does the constitution say now?
Article 8 of the constitution says:
“A person born outside The Bahamas after 9th July 1973 shall become a citizen of The Bahamas at the date of his birth if at that date his father is a citizen of The Bahamas otherwise than by virtue of this Article or Article 3(2) of this constitution.”
What does this mean?
With named exceptions, a person whose father is a Bahamian citizen will automatically become a Bahamian citizen. The same is not true for a person whose mother is a Bahamian citizen. Such a person - born to a Bahamian mother and non-Bahamian father - has to apply for Bahamian citizenship between the ages of 18 and 21.
What are the exceptions?
If a person’s father obtained citizenship through Article 3(2) or Article 8 - meaning the father was born outside of The Bahamas but became a Bahamian citizenship because his father was a Bahamian citizen - that person is not entitled to Bahamian citizenship under this Article.
This amendment would not be retroactive, so children born before the passing of the bill would not benefit from it. Those born from 1998 until the passing of the bill (if there is a 50% + 1 vote on June 7, 2016) would be able to apply, their applications considered at the discretion of the Minister under the Bahamas Nationality Act.
Who does this Article affect?
Article 8 affects Bahamian women married to non-Bahamian men who give birth outside of The Bahamas and their families. Children with Bahamian mothers and non-Bahamian fathers who are not born in The Bahamas are not able to obtain automatic citizenship. They must apply between the ages of 18 and 21, and citizenship is granted at the discretion of the Minister.
Examples of circumstances resulting in Bahamian women giving birth abroad include studying outside of The Bahamas, working outside of The Bahamas, and seeking medical care outside of The Bahamas for a variety of reasons including high risk pregnancies.
What is the proposed change?
The proposed constitutional amendment is the addition of “or mother” so that Article 8 reads: “A person born outside The Bahamas after 9th July 1973 shall become a citizen of The Bahamas at the date of his birth if at that date his father or mother is a citizen of The Bahamas otherwise than by virtue of this Article or Article 3(2) of this constitution.”
This change would allow Bahamian women and men married to non-Bahamians to pass on Bahamian citizenship to their children, regardless of where their children are born. As it stands, the children of Bahamian women married to non-Bahamian become automatic Bahamian citizens only if they are born in The Bahamas.
What are the potential issues with this proposed change?
This change excludes people who have not reached the age of 18 to apply for citizenship, so they would not receive automatic Bahamian citizenship with the passing of this bill. They would, however, still have the right to make application for Bahamian citizenship. It also does not provide a means for people whose fathers obtained Bahamian citizenship through Article 3(2) or Article 8 - because they were born outside of The Bahamas - to get Bahamian citizenship.
- - - - - - -
Bill #2 seeks to allow non-Bahamian spouses of Bahamian women to apply for citizenship.
What does the constitution say now?
Article 10 of the constitution says:
“Any woman who, after 9th July 1973, marries a person who is or becomes a citizen of The Bahamas shall be entitled, provided she is still so married, upon making application in such manner as may be prescribed and upon taking the oath of allegiance of such declaration as may be prescribed, to be registered as a citizen of The Bahamas: Provided that the right to be registered as a citizen of The Bahamas under this Article shall be subject to such exceptions or qualifications as may be prescribed in the interests of national security of public policy.”
What does this mean?
Non-Bahamian women married to Bahamian citizens can, through application, become citizens of The Bahamas.
Non-Bahamian men married to Bahamian citizens do not benefit from this constitutional right.
What are the exceptions?
The Minister can, according to section 7 of the Bahamas Nationality Act, deny citizenship to applicants for any reason sufficient for public policy including conviction of a criminal offense within five years preceding application, not being of good behavior, and engaging in activities prejudicial to the safety of The Bahamas.
Who does this Article affect?
This Article affects Bahamians married to non-Bahamian spouses.
What is the proposed change?
Bill #2 would change Article 10 to read “Any woman or man who” so that non-Bahamian spouses of both women and men could apply for and obtain Bahamian citizenship.
What are the potential issues with this proposed change?
Concerns have been raised about a potential increase in marriages of convenience. No changes in immigration policies are expected, and Bahamian citizenship will not be automatic for non-Bahamian spouses of Bahamian citizens. If Bill #2 passes, applicants will still go through the existing process which begins with a Resident Spouse Permit for those married for under five years. After five years, application can be made for permanent residency.
- - - - - - -
Bill #3 seeks to allow Bahamian men to pass on citizenship to their children born out of wedlock.
What does the constitution say now?
Article 14 of the constitution says:
“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.”
What does this mean?
A person born out of wedlock automatically takes on the citizenship of their mother, not their father. A Bahamian man may not pass on Bahamian citizenship to his child if he is not married to the mother of that child.
Who does this Article affect?
Bahamian men who are not married to the mothers of their children are not able to pass on Bahamian citizenship to their children.
What is the proposed change?
The passing of Bill #3 would allow Bahamian men to transmit citizenship to their children born out of wedlock.
What are the potential issues with this proposed change?
It has been suggested than Bahamian men may attempt to pass on citizenship to children who are not biologically their own. This issue would be avoided as paternity must first be proven by DNA evidence.
- - - - -
Bill #4 seeks to add sex to the prohibited grounds of discrimination
What does the constitution say now?
Article 26(3) of the constitution says: In this Article, the expression "discriminatory" means affording different treatment to different person attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, color or creed whereby person of one such description are subjected to disabilities or restrictions to which person of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
What does this mean?
Article 26(3) is linked to 26(1) which assures no law is discriminatory. The former specifies prohibited grounds of discrimination as race, place of origin, political opinion, color, and creed. It is then unconstitutional for a law to discrimination on the basis of race, place of origin, political opinion, color, or creed.
What are the exceptions?
Article 26(4)(c) lists exceptions - laws that make provisions on “adoption, marriage, divorce, burial, devolution of property on death, or other matters of personal law”. For example, while 26(3) says no law may discriminate on the basis of creed, burial is excluded which allows for restrictions on who may be buried at a church or cemetery based on creed.
Who does this Article affect?
This article is a part of Chapter 3 - Protection of Fundamental Rights and Freedoms of the Individual - and affects all citizens of The Bahamas.
What is the proposed change?
Bill 4 seeks to add “sex” to the list of prohibited grounds of discrimination. It also offers the definition of sex as “male or female”. This means no law could discriminate against a person based on whether they are male or female if Bill 4 passes.
What are the potential issues with this proposed change?
Concerns have been raised that this amendment to Article 26 may lead to same-sex marriage by causing the Matrimonial Causes Act - which states a marriage is void when “parties are not respectively male and female” in Section 21 - to be contravention to the constitution. This argument is without merit as Article 26(4)(c) of the constitution lists marriage as exempt from 26(3) - the part where the amendment is to be made.
In an earlier version of the amendment, there was no definition of sex. There was confusion about the meaning of sex, and concern about differentiating it from gender and sexual orientation. The definition appeared as part of the proposed amendment following consultation with leaders of religious organizations. With sex defined as “male or female”, a new concern has been raised that the amendment invisiblizes and puts intersex people at risk.
Disclaimer:
The views expressed here are solely those of the author in his/her
private capacity and do not in any way represent the views of
TheBahamasWeekly.com
© Copyright 2016 by thebahamasweekly.com
Top of Page
|
|
|
|
