Attorney General (Appellant) v Shannon Tyrek Rolle and 4 others (Respondents) (The Bahamas)

Parties (including notable third parties)

Attorney General; Shannon Tyreck Rolle and 4 others

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Summary of Facts

The respondents claim that they are citizens of The Bahamas since they were born in the country to unmarried mothers without Bahamian citizenship and fathers with citizenship. The issue is whether the Constitution of The Bahamas (‘the Constitution’) confers citizenship of The Bahamas at birth on children born in the country to such parents.

Article 6 of the Constitution states that anyone born in The Bahamas after 9 July 1973 shall be a citizen of The Bahamas at birth if at that date either of their parents are a citizen of The Bahamas.

However, Article 14(1) of the Constitution states that any reference in this chapter (which includes Article 6) to the father of a person shall, in relation to any person born out of wedlock, be construed as a reference to the mother of that person.

The Supreme Court of The Bahamas held, in a departure from previous cases, that children born in The Bahamas were entitled to citizenship at birth if either of their parents held citizenship, regardless of marital status of their parents. The Court of Appeal of the Commonwealth of The Bahamas upheld the Supreme Court decision, leading the Attorney General to appeal to the Judicial Committee of the Judicial Committee of the Privy Council (‘the Board’).

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Legal Arguments

Legal Arguments by the Attorney General

The Attorney General put forward three arguments.

Firstly, that as a matter of ordinary construction, there is a strong presumption at common law that requires the reference to ‘parents’ in Article 6 to be read down to refer to legitimate parents (i.e. parents who are married). This is supported by the common law presumption that references in legislation to a ‘child’ are references to a legitimate child.

Secondly, that Article 14(1) of the Constitution qualifies the reference to ‘parents’ in Article 6 and confirms that the framers of the Constitution did not regard biological fatherhood as sufficient to constitute fatherhood for the purposes of the Constitution’s provisions.

Thirdly, that subsequent legislation supports the reading down of Article 6. The Attorney General relied on section 6 of The Bahamas Nationality Act 1973 and Section 3 of the Status of Children Act 2002.

Legal Arguments by the Respondents

The respondents argued that if Article 6 was read in the manner contended by the Attorney General, this would lead to anomalous results, including the illegitimate child of a Bahamian father and non-citizen mother would be viewed the same by Article 6 as a child whose parents are both non-citizens.

The respondents also submitted that the Board should apply an interpretation which was ‘consistent with the momentum of international human rights law’ (paragraph 52), although this was not addressed by the Board because the Attorney General’s submission regarding Article 14(1) had already been rejected based on conventional statutory interpretation.

Outcome

The Board dismissed the Attorney General’s appeal and held that the Constitution confers citizenship at birth to children born in The Bahamas whose mother is unmarried and not a citizen of The Bahamas and a father who is a citizen.

Each of the Attorney General’s three overarching submissions are addressed below.

Common law presumption

The Board rejected the common law presumption argument advanced by the Attorney General. This was because if Article 6 was only to apply to legitimate children to parents who were married, then no illegitimate children born after 9 July 1973 would have citizenship of The Bahamas, notwithstanding the citizenship of Bahamian parents, which would be a ‘drastic consequence’. (paragraph 38)

Article 14(1)

The Board held that Article 14(1), which qualified the meaning of ‘father’, did not apply to Article 6, because Article 6 did not contain the word father, instead using the word ‘parents’. The Board stated that if it had been intended for the reference to ‘parents’ in Article 6 to be read as ‘father or mother’ and therefore qualified by Article 14(1), this could have been expressly stated in Article 6 or article 14, rather than employing an ‘convoluted approach’. (paragraph 44)

Further, the Board stated that if Article 14(1) were to apply to other references to ‘parents’ in the relevant chapter of the Constitution, this would be problematic in the context. This supports the argument that Article 14(1) was not intended to apply beyond where the word ‘father’ is expressly used. The Board also stated that the presumption that where different words are used in a legislative instrument, they carry different meanings applied in this context.

The Board also considered that there was a sound explanation for the use in Article 6 of the term ‘parents’ (as opposed to ‘father and mother’). In Chapter II, ‘father’ is used in a very specific sense. Whilst Article 14(1) is to limit ‘father’ to a ‘biological father who is married to the child’s “mother”’, the use of the word ‘parents’ in Article 6 discloses an intention to convey a different meaning.

The above arguments were sufficient for the Board to find that Article 14(1) did not apply, however the Board also noted that the Attorney General’s submission would be to read into Article 6 a discriminatory approach, including between the mother and father (in terms of who is a citizen). The Board stated it could not see any justification for adopting an approach which would reflect ‘values which have long been rejected’. (paragraph 50)

Interpretation by reference to subsequent legislation

Though the Board acknowledged later legislation can be used to clarify ambiguity in the meaning of earlier legislation, the Board held that the meaning of Article 6 was ‘clear as a matter of ordinary construction’. (paragraph 54) This meant that reference to subsequent legislation was not required and furthermore the subsequent legislation could not clarify the ambiguity in the meaning of the relevant provisions in any case.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	The Constitution of The Commonwealth of The Bahamas	Articles 3 to 14
Domestic	Bahamas Nationality Act 1973	Sections 2(1) and 6
Domestic	Status of Children Act 2002	Section 3

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

No commentary available.