By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

THE government has offered not to detain or deport any person from The Bahamas who claims to be entitled to citizenship under Article 6 of the Constitution pending the Privy Council’s ruling on the Court of Appeal’s recent citizenship decision as long as the Court of Appeal simultaneously stays the effect of its ruling.

Franklyn Williams, the deputy director of legal affairs at the Office of the Attorney General, said during a court hearing yesterday that the government would also undertake to receive and process, but not finalise, applications for people claiming to be so entitled to citizenship pending the Privy Council’s ruling rather than turn them away.

He revealed the proposed undertaking during a discussion of an affidavit filed by Wayne Munroe, QC, which says the Department of Immigration is “still deporting individuals, especially Haitian nationals inclusive of minors…” despite the citizenship ruling in question.

Nonetheless, Mr Munroe opposed the government’s offers and argued that no stay is necessary in the matter. Mr Munroe argued the government does not have to follow the Court of Appeal’s ruling and can let the status quo remain in place until the Privy Council rules on the matter.

The Court of Appeal adjourned the hearing to consider the matter.

The hearing came nearly a month after the court affirmed Supreme Court Justice Ian Winder’s landmark ruling that children born out of wedlock to Bahamian men are automatically citizens, regardless of the nationality of their mother.

Because the court’s ruling would generally be treated as binding, the Office of the Attorney General is asking the court to stay the ruling until the matter has been adjudicated at the Privy Council in London.

Mr Munroe has argued there is nothing to stay because, while the court has made a declaration about how to interpret the relevant clause in the Constitution, it did not order the government to do anything.

Mr Williams said: “The government is prepared to undertake that pending the determination of this appeal, not to deport any persons claiming under Article 6 and the declaration of the court.

“If a person presents themselves to be registered or be declared a citizen, a person whose father is Bahamian and whose mother is not and upon indicating that, they are not to be detained or deported.

“We would so advise the Director of Immigration. We undertake to do that.”

Asked how this can affect people currently detained at the Detention Centre, Mr Williams said: “Instructions would come from the Minister of Immigration, the minister responsible for that, or the Director of Immigration. We have also indicated that we would not detain any such person.

“Nobody who can show they were born in The Bahamas to a Bahamian father or mother can be detained.”

Mr Munroe described the government’s proposal as messy.

“The citizen should be the one to move the court for any remedy,” he said. “Our primary position is the government isn’t mandated to do anything because the lower court didn’t make a declaration (and) specifically refused to do so until the subsequent hearing and, in fact, if somebody presents themselves to a government agency, quite apart from the construction of Article 6 would be the issue of do I accept your proof of paternity?

“Unless and until the court gives a decision on what will be sufficient to show paternity, whether it is the form of registration as a father or birth certificate, whether it is the presumption of legitimacy… whether it is DNA evidence, whether it is an ordinary trial on the issue of paternity… until the court makes a final determination as to that question, anyone presenting themselves and saying, ‘My daddy is a Bahamian’ will have the second hurdle to jump which these respondents have to jump which is, ‘and I can prove to you that this is my father’.”