The Attorney-General v Casshonya Pasha Rolle

• Jurisdiction: Bahamas
• Judge: Mr. Milton Evans JA,Sir Michael Barnett, P,Mr. Jones, JA,Mr. Jon Isaacs JA
• Judgment Date: 21 June 2021
• Neutral Citation: BS 2021 CA 100
• Docket Number: SCCivApp. No. 62 of 2020
• Court: Court of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honourable Sir Michael Barnett, P

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

The Honourable Mr. Justice Evans, JA

SCCivApp. No. 62 of 2020

Between

The Attorney-General

Appellant

and

Shannon Tyreck Rolle

and

Lavaughn Shawn Rolle (By his next friend Shannon Tyreck Rolle)

and

Casshonya Pasha Rolle (By his next friend Shannon Tyreck Rolle)

Respondents

and

The Attorney General

Appellant

and

Mayson Juno Pierre (By his next friend Julna Pierre)

and

Nikey Pierre (By his next friend Julna Pierre)

Respondents

APPEARANCES

Mr. Franklyn Williams, with Mrs. Kayla Green-Smith, Mr. Kirkland Mackey, Mr. Keith Cargill, Ms. Raquel Whyms, and Ms. Lukella Lindor, Counsel for the Appellant

Mr. Wayne Munroe, QC, with Ms. Bridget Ward, Counsel for the Respondents

Attorney-General of Guyana v. Cedric Richardson [2018] CCJ 17 (AJ) mentioned

Bahamasair Holdings Ltd v. Messier Dowty Inc [2018] UKPC 25 mentioned

Bertie van Zyl (Pty) Ltd and anor v. Minister of Safety and Security et al [2009] ZACC 11 mentioned

Bimini Blue Coalition Ltd v. The Right Hon. Perry G. Christie et al [2014] 1 BHS J No. 153 mentioned

Bowe and Davis v. The Queen [2006] 1 WLR 1623 considered

Bowe (Junior) et anor v. The Queen (Bahamas) [2006] UKPC 10 mentioned

Colin Wright et al v. BCPOU Plan & Trust Fund SCCivApp & CAIS Nos. 111, 128, 157 & 158 of 2018 mentioned

Cyril Livingstone Minnis v. Commonwealth Bank Ltd and anor SCCivApp & CAIS No. 218 of 2017 applied

Harrow London Borough Council v. Qazi [2003] UKHL 43 considered

Hunter v. Southam Inc [1984] 2 S.C.R. 145 mentioned

K v. Minister of Home Affairs [2007] 2 BHS J No, 12 considered

Minister of Home Affairs v. Fisher [1980] AC 319 applied

Minister of Information & Broadcasting and another v. Benjamin and others [1998] ECSC J 06151 mentioned

Panjanadum v. The Prime Minister of Mauritius, 1995, SCJ 24 considered Peters and anor v. Attorney-General and anor [2002] 3 LRC 32 mentioned Police Authority for Huddersfield v. Watson [1947] K.B. 842 applied

R v. Big M Drug Mart Ltd [1985] 1 S.C.R. 295 mentioned

Regina (Johnson) v. Secretary of State for the Home Department [2016] 3 WLR 1267 considered Ruffin's Leisure Industries Limited v. The Attorney-General of The Bahamas and anor [2011] 3 BHS J. No. 73 applied

The Commodore of the Royal Bahamas Defence Force and others v. Gregory Laramore SCCivAppeal No. 145 of 2013 mentioned

The Minister of Home Affairs and anor v. Barbosa [2019] UKPC 41 applied

Hunter, et al v Southam Inc. [1984] 2 SCR 145 considered

K v Minister of Foreign Affairs & Others [2007] 2 BHS No.12 considered

Panjanadum v. The Prime Minister of Mauritius, 1995, SCJ 24 considered

R (on the application of Johnson) v Secretary of State for the Home Department [2016] EWCA 56 considered

The Minister of Home Affairs and another v Barbosa [2019] UKPC 41 considered

The Minister of Home Affairs and another v Collins Mae MacDonald Fisher and another [1979] 3 All ER 21 applied

Forrester Bowe, Trono Davis v The Queen [2006] UKPC 10 applied

K v. The Minister of Foreign Affairs and Others [2007] 2 BHS No. 12 considered

Minister of Home Affairs v. Fisher [1980] AC 319 mentioned

Panjanadum vs. The Minister of Mauritius, 1995 SCJ 248, 1995 M.R. 93 considered

Re C. (Minors) (Adoption: Residence Order) [1993] 3 W.L.R. 249 considered

Regina (N) v Lewisham London Borough [2015] AC 1259 considered

Housen v Nikolaisen (2002) SCC 33 applied

Panjanadum v Prime Minister of Mauritius [1995] SCJ 248 considered The Minister of Home Affairs and another v Barbosa [2019] UKPC 41 distinguished

DSG Retail Ltd and another v Mastercard Incorporated and others [2021] 1 All ER (Comm) 63 considered

R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56 considered

Galloway v Galloway [1955] 3WLR 723 applied

Forrester Bowe, Trono Davis v The Queen [2006] UKPC 10 distinguished

Minister of Home Affairs v Fisher (1979) 44 WIR 107 distinguished

Mutharika and another v Chilima and another [2020] 4 LRC 536 applied

Rolle et al v The Attorney General and Pierre et al v Attorney General 2017/PUB/con/00014, 2020 SC 53 considered

K v Minister of Home Affairs [2007] 2 BHS J No. 12 applied

Panjanadum v Prime Minister of Mauritius [1995] SCJ 248 considered

Minister of Home Affairs v. Fisher [1980] AC 319 considered

K v Minister of Foreign Affairs & Others [2007] 2 BHS No.12 applied

Judgment delivered by The Honourable Madam Justice Crane-Scott, JA:

Civil Appeal — Constitutional Interpretation — Purposive Approach to Constitutional Interpretation — Chapter II — Article 6 and Article 14(1) of the Constitution of The Bahamas — automatic citizenship — Whether the reference in Article 14(1) of the Constitution to “father” is to be read as indirectly applying to the interpretation of the word “parents” in Article 6 — Whether Article 6 is to be read subject to Article 14(1) — Whether the word “parents” in Article 6 means biological parents — Whether a person born out of wedlock in The Bahamas after 9th July 1973 to a Bahamian father automatically becomes a citizen of The Bahamas under Article 6 irrespective of the marital status of his parents at the date of birth

The respondents, who are all children of unmarried Bahamian fathers, brought separate applications seeking a ruling from the Supreme Court as to the true construction of Article 6 of the Bahamas Constitution. They each claimed the right to Bahamian citizenship under Article 6 on the basis of their having been born in The Bahamas after 9 July 1973 to a father who was a citizen of the Bahamas at the date of their birth.

The appellant resisted the applications on the basis that since the respondents' fathers were unwed at the date of their birth, they were excluded from automatic Bahamian citizenship by virtue of Article 14(1) which, he contended, applies to the interpretation of Article 6 by indirect reference. Article 14(1) provides, inter alia, that any reference in Chapter II to the father of a person, in relation to a person born out of wedlock, was to be construed as a reference to the mother of that person.

The applications were heard together and in a written decision the judge declared that: “every person born in The Bahamas after 9 July 1973 shall become a citizen of The Bahamas at the date of his birth if at that date either of his parents is a citizen of The Bahamas, irrespective of the marital status of the parents at the time of birth.”

The appellant appealed on the ground, inter alia, that the learned judge erred and misdirected himself in law in holding that the only interpretation, having regard to the language used and giving effect to the provisions of The Bahamian Constitution dealing with the fundamental rights and freedoms of the individual, is to preclude any application of Article 14(1) by indirect reference to Article 6.

Due to the Constitutional importance of the issues raised by the appeal, the Court sat in a panel of 5 justices. After hearing the arguments, the Court reserved its decision.

Held: (Barnett, P and Evans, JA dissenting) appeal dismissed; decision of the learned judge is affirmed in its entirety, costs of the appeal are the respondents’.

per Crane-Scott, JA: The practical result of ‘forcing’ Article 14(1) into the clear language of Article 6, is to give Article 6 a strained construction which the framers never intended. Read in the manner contended for by the appellant, such a construction runs counter to the fundamental rights protections of the Constitution itself, affording different treatment to persons born in the Bahamas simply on the basis that they were born out of wedlock. I therefore agree with the learned judge that such a construction would result in the disentitlement to automatic citizenship of an entire class of persons born on Bahamian soil to Bahamian men, merely because of the marital status of their parents at the date of their birth.

I can find no fault in the learned judge's conclusions or in the approach he employed to the interpretation of Article 6 or Article 14(1) of The Bahamas Constitution. He applied the correct canons of statutory interpretation and justified his thoughtful conclusions by employing the purposive approach advocated in Fisher. Additionally, evidently cognizant of the antiquated common law filius nullius rule, preserved in Article 14(1) which the framers of the Constitution chose to retain for purposes of Articles 3(2) and Article 8 (where the word “father” was deliberately employed), the learned judge chose to give a generous interpretation to Article 6 of the Constitution, giving as he said, “full recognition and effect” to those fundamental rights and freedoms espoused by the Constitution itself.

The learned judge is clearly correct that the Fisher principles requiring a Constitution to be given a broad and purposive construction have been followed in numerous cases across the Commonwealth. Any doubts or reservations about the overarching applicability of the Fisher approach to the construction of constitutional instruments, have clearly been put to rest by the recent Privy Council decision in Barbosa. The latter Privy Council authority unreservedly confirms that a constitutional instrument is to be construed as Winder J did, on “its own terms and consistently with the principles explained in Fisher.”

For all the reasons outlined in this judgment, I am satisfied that the proper interpretation which the framers intended to be given to Article 6 of the Bahamas Constitution is that every person born in The Bahamas after the 9 July 1973 shall become a citizen of the Bahamas at the date of his birth if at that date either of his biological parents is a citizen of The Bahamas, irrespective of the marital status of the parents at the...