Real Sanctions Needed

The dual citizenship saga has demonstrated the clear and urgent need for effective deterrents in respect of breaches in the supreme law of the land – the Constitution – by those sworn to uphold its provisions. It is evident that political expediency has trumped principle. Our law makers have effectively turned a blind eye to their colleagues who knowingly and blatantly perpetuate breaches of the Constitution.

The offending parties wait to be “discovered” and then take advantage of the pathetically slow pace of justice to prolong the breach. The substantial cost of civil litigation have forced some to fess up and hurriedly take the appropriate action to regularize their occupancy. However, the cost of litigation apart, the offenders are able to keep their ill-gotten gains – the proceeds of their constitutional crimes.

As presently constituted, the penalties under the Constitution are laughable and have never been enforced publicly in breach. In the absence of a culture of transparency, accountability and resignation, it becomes necessary to outline in detail real sanctions to deter would-be offenders and punish those lacking the requisite political integrity. To that end, it is being proposed that the Parliament consider amending the Constitution of Jamaica to include the following provision:

Where a Member of Parliament has occupied a seat in Parliament in breach of the Constitutional provisions for a specific period of time, that Member shall not be entitled to the remuneration and pension provisions that have been paid or will be due to be paid for that specific period of time.

Merry Go Round Clowns

Initially, the position of the government and the Jamaica Labour Party (JLP) was that:

• The MOU"S breached the constitutional rights of Jamaican people;
• The MOU's were legally invalid as the provisions were in conflict with the laws of Jamaica;
• Dr. Peter Phillips secretly and without the requisite authority entered into such agreements (MOU1 & MOU2) with agencies of the US government (DEA, CIA, FBI) 

Curiously, in the Manatt Commission of Enquiry, the JLP had distinct and separate legal representation from Prime Minister Bruce Golding. The JLP, through its attorney Frank Phipps QC, maintained the position that the MOU's facilitated the breach of the citizens' constitutional rights.

PM Golding's attorney, Hugh Small QC, seemed at times to be lending support to this seemingly principled position.

The PNP's attorney Senator K.D. Knight QC. brought to the attention of the COE Prime Minister Golding's admission in Parliament that the current government of Jamaica "wholeheartedly endorsed" the MOU's.  Surprise, surprise!

Security Minister Nelson testified that he supported the PM's assertion "in principle" but "not the methodology". In short there had been a breach. This is the first time that the objection to the Dudus Extradition Request had been couched in such terms. More surprise was yet to come.

Security Minister Nelson stated that the government was now involved in a process to amend the existing legislation to "legitimize the breach". WOW!

So we have spent much time and taxpayers funds to come full circle.  The seemingly principled position originally adopted has been effectively abandoned, to wit:

• The sell-out MOU's have been wholeheartedly endorsed and not annulled by this JLP government. 
• The operational terms of the sell-out have been breached;
• The breach has been condoned by the government now taking steps to legitimize the breach;
• The JLP regime is now seeking to perfect the terms and conditions of the "sell-out" ;

The ultimate "breach free" is deeply entrenching such provisions in the Constitution of Jamaica. That will never take place as the JLP is deadly afraid of anything requiring a referendum.

It has generally been accepted that there has been a "Web of Deception". Dr. Peter Phillips used the phrase as early as March 24, 2010.  SG. Douglas Leys has adopted the phrase to describe the events. The Manatt COE will now have to identify the Chief Spider. The "Web of Deception" would seem to involve some agreement among more than one and actions taken in furtherance of such agreement.  In short a conspiracy to deceive. 

However, the most recent revelations give rise to the suspicion that there has been deliberate usage of state financial resources ($40 million ) to undertake an investigation - the futility of which is indisputable. In short, a conspiracy to defraud.

There have been media reports raising concerns that high priced QC's  have been employed at taxpayer's expense. The selection of the attorneys has not been transparent.  Why would experienced attorneys need legal representation when they are merely called upon to give an accurate account of what actually took place?

It makes little or no sense to be investigating the legality and ethics of memoranda that have been "wholeheartedly endorsed", fully recognized and faithfully implemented by the current JLP regime. Irrespective of the findings of this Manatt COE, the JLP regime has started the process of "legitimizing the breach"; not specifically and unambiguously outlawing the breach. So making the breach legitimate apparently no longer signs away the citizens' constitutional rights". 

Hence more of the actions (once classified as breach) will continue but with legal lubricated conduits - utilizing the terminology adopted by the PM himself.

At the end of this COE, cotton candy should be distributed to the participants. Its character expecially its texture aptly captures the lack of substance of this enquiry.. Cotton candy after all is the customary treat at circuses - irrespective of the cost.  This would be a fitting tribute to a bunch of clowns!!

Call Lorna Golding

Many reputations are being put to the test during the Manatt COE hearings. We have heard from public officials, specifically charged with dealing with extradition cases. We are yet to hear from the political operatives. However, none of the players in the Dudus Extradition Affair (DEA) has had personal reputation smeared in the press as had Mrs. Lorna Golding, the esteemed wife of PM Bruce Golding.

Wikileaks was wicked. They purported to disclose official comments made by the US representative of the happenings at a "Tea Party" (a misnomer as no tea was reportedly served). A number of damaging allegations were contained in those official communications. These include, apart from the offering to serve day-old salad made by her husband (Iron Chef Bruce?) :

• The PAO's conversation with Mrs. Golding covered a wide array of topics, from salads and manicures to the Coke extradition request (Ref A) and Jamaica's pending negotiations with the International Monetary Fund.
• Mrs. Golding attributed the Coke extradition request to Congressman Rangel's "whispering in Secretary Clinton's ear" and the PNP's "pernicious influence" within the Jamaican diaspora, and insisted that the extradition request had been orchestrated as a means of embarrassing her husband politically.
• Despite assurances to the contrary, Mrs. Golding remained convinced, as do many Jamaicans, that the White House's delay in naming a new U.S. ambassador is because Jamaica has been "downgraded" as a result of the extradition request delay.
• (NOTE: Mrs. Golding was apparently unaware that, earlier in the week, the Office of the Prime Minister had released a statement to the press indicating that the delay in naming an ambassador was due to the White House's "preoccupation with other matters" and was unrelated to the extradition request.

Wikileaks has an international audience. Internationally there is a level of credibility attached to internal US government official communique. Incidentally, PM Golding visited the salad party briefly. Mrs. Golding must be given an opportunity to clear her name. Whether or not she accepts the invitation, the terms of reference of the Manatt COE obliges the exploration of the conduct of any public person who interacted with US government officials in respect of the Dudus extradition.

• What was the intended objective of Mrs. Golding in inviting the US government official to tea?
• Did she receive any background briefing on the topics she intended to raise?
• What contribution, if any, did PM Golding make to the proceedings?
• Did she, previous to issuing the invitation to tea, inform her husband of the intiative?
• Did her husband Orette "sanction the initiative"?
• Did she report to OB her impressions of the outcome of the event?
• Was she "congratulated"a la Robinson & Brady for her achievements?
• Has she tendered her resignation aka separation a la Robinson after a different interpretation was placed on her Tea Party?
• Who paid for the refreshments served (assuming the day-old salad was gratis)?
• Has she ever met Christopher Micheal Coke aka Dudus aka Presi?
• In what capacity did she invite and host that salad party? Wife of the PM? Wife of Orette? Wife of Party Leader? Wife of MP for West Kingston or just Lorna G?

The US communique highlighted in its conclusion -

Mrs. Golding insisted that she had invited the PAO to have tea on her own initiative and that the PM, although aware of the meeting, hadn't put her up to it. This is likely true, given that Mrs. Golding appeared completely unprepared, could not stay on message, and had no apparent talking points or agenda.

Will the Manatt COE come to a similar conclusion in its finding?

Source: UK Guardian

Cartoon & Cash Cow

We have been told that the budget allocation for the Dudus/Manatt COE is approximately J$40million. We have also been informed that the remuneration package for the Chairman is approximately J$30,000.00 per hour.

We have not been told if the hourly rate is confined to the public sittings; or if it applicable to consultations between Commissioners; or to deliberations in compiling the final report. Neither have we been informed of the remuneration packages of the other Commissioners, the Secretary, Counsel to the Commission or his assistants.

In the interest of transparency, the Commission should make public the various remuneration packages and the presumptions underlying the $40 million budget. From the current proceedings, it is fair to infer that there is likely to be significant cost overruns, especially in light of the hourly rate component.

Clovis' cartoon in the Observer, Tuesday February 15, 2011 captures in vivid colours the display of legal manoeuverings, that have characterized the hearings to date. The talents on display could amount to some 7 QC's with junior lawyers in supporting roles.

Queen's Counsels do not come cheap; neither do those of long standing who do not have that colonial appellation. Some have attended every sitting - seemingly oblivious to the fact that the witness in attendance will not touch and concern their client's interest.

The media coverage, especially live feeds supplied by JIS to various media outlets, makes that an invaluable marketing tool. The public may be excused from the view that if you are not at the Commission, then you "nah sey nutten" as an attorney.

Indeed, so invaluable is the exposure that attorneys without any brief have sought to occupy strategic seats behind the main actors. Aware that the camera is focused in their direction, they adjust their heads periodically to ensure that "you see me now".

Well that invaluable exposure is provided free of cost to those attorneys not taking part in the proceedings. However there is one troubling concern:

Who is paying the fees of the attorneys appearing before the Commission?

One would have thought that individuals who have sought to obtain the services of individual attorneys would have had to bear such cost,. as opposed to complete ministries or departments which are represented by one set of attorneys. For example: note is made of the absence of any attorney representing the Ministry of Justice. Yet there are at least two representing the Minister/AG, two representing the SG and two representing the Deputy SG.

We must therefore ask:

• Are the taxpayers of Jamaica bearing the cost of legal representation for the thre members of the Ministry of Justice? If yes, then what are the details of such billings and how were the legal representations procured?
• Are there situations outside that in the Ministry of Justice (say Ministry of National Security) where a similar arrangement - private legal firms at taxpayers expense - has been made? If yes, then can the public be informed as to the manner in which these services were procured and the cost?

We have been entertained but the cost of such entertainment might engender an opposite response. There is a Jamaican saying: "wha sweet nanny goat a go run him belly".

Are we destined for a national outbreak of diarrhoea?

Source: Jamaica Observer

"Web of Deception" - Phillips

Solicitor General Douglas Leys grabbed headlines recently by his use of the phrase "Web of Deception". Curiously Dr. Peter Phillips, former Minister of National Security under a previous PNP regime is reported to have used that exact phrase from as early as March 24, 2010.

Below is an extract from Dr. Phillip's Statement.

The timeline will serve to demonstrate the web of deception and uncertainty that surround this matter. It also serves to put in context the seriousness of the issues.[emphasis added]

August 25, 2009

Extradition request for Christopher “Dudus” Coke.

September 18, 2009

First diplomatic note from the Government of Jamaica requesting additional information.

Bill payment made to Manatt Phelps and Phillips (MPP) for US$49,892.62 from Harold Brady (GJ) for services rendered per billing agreement.

October 1, 2009

Contract between Harold Brady and MPP signed. Harold Brady was referred to as “Consultant to the Government of Jamaica authorized on behalf of the GOJ to approve of the engagement of MPP as set forth in this letter…”

October 13, 2009

First filing by MPP with the US Department of Justice under the Foreign Agents Registration Act (FARA) setting out the contract dealing in political activities for a fee of US$100,000.00 per quarter

October 13, 2009

Short Form Registration statement filed by MPP lawyer Susan Schmidt which declares that she is the partner who will engage in political activities as defined in the contract.

November 12 , 2009

Amendment/revision to the FARA filed on October 13, 2009

December 10, 2009

Short Form Registration statement by MPP lawyer Kevin Di Gregory.

February 4, 2010

Amendment to the registration form filed by MPP. MPP still represents themselves on the USA ’s DOJ website as representing the GOJ and confirms that a bill of US$49,892.62 had been paid. This contradicts Mr. Brady’s assertion (on radio on made March 17, 2010) that he had corrected the agreement which listed him as representing the GOJ,

March 16, 2010

Prime Minister responds to questions posed by Dr. Peter Phillips in Parliament. PM vehemently denies any link between the Government and MPP.

March 17, 2010

Harold Brady interviewed on Nationwide Radio Programme and denies that he was a consultant to the Government of Jamaica. He said he had corrected the contract with MPP which listed him as representing the Government of Jamaica.

Mr. Harold Brady issues statement denying that he was retained by the GOJ to act on its behalf in the matters referred to in Parliament.

Minister Daryl Vaz tells journalists during a Post Cabinet Press Briefing that the document proving the corrections that Harold Brady said he made to the contracts have been requested from Mr. Brady.

March 18, 2010

Statement from the Prime Minister acknowledging that the Solicitor General in fact had made contact and had met with Representatives of MPP.

He denies any contractual arrangements with them and that MPP had accompanies the Solicitor General to meetings

March 22, 2010

Newspaper article quotes Minister Vaz as saying he had received documentation from Mr. Brady, but he was unable to get to his office to retrieve them until the following Monday.

Radio reports outlined that the documents would be perused by the Cabinet

March 23, 2010

Still no further information from the Cabinet or any other Government on the matter

Since then, based on the statements made by Prime Minister Golding himself, the Information Minister, Daryl Vaz, and Mr. Brady, the country has been left with more questions than answers. There has been more than an appearance of public deception by the Prime Minister and the Government.

Source: Statement by MP Peter Phillips on Manatt Phelps & Phillips

Questions Nobody Asked: Lewin

• What exactly was the response of the Minister of National Security to the information you relayed?
• You said on CVM TV words to the effect that the Minister "turned white". Could you please elaborate?
• How long did you observe that change in pigmentation?
• Did the Minister do or say anything during the duration of the shade change?
• How did you react when you observe these Ministerial changes?
• How did the Chief of Staff react?
• Did the Chief of Staff relay any information to the Minister during that meeting?
• Did the Minister of National Security say anything to the Chief of Staff?
• You have said that the Minister took about ten minutes to locate the PM by phone, did this seem unusual to you?
• Did the Minister indicate that he was experiencing a difficulty in making telephone contact with the PM?
• Can you say, with any degree of certainty, that the Minister of National Security only spoke to the PM via telephone in your presence?
• Can you say, with any degree of certainty, that the Minister during your stay only attempted to make contact with the PM solely?
• You said that the meeting with the PM lasted between five and seven minutes, what was your expectation of that meeting? Were you surprised as to the nature and duration of the meeting?
• Did the PM subsequently make any contact with you in relation to this extradition matter?
• After the meeting, did you have any discussions with the Chief of Staff in respect of the extradition?
• After the Vale Royal meeting, did you attend any meetings involving the PM and the Minister of Justice concerning at which the extradition request was discussed?
• Given that there was telephonic monitoring of Dudus, can you indicate if any attempts were made to trace the source of calls made to him during the period from when you left the Ministry of National Security to the time you left Vale Royal?
• Can you indicate if the attempts were successful?
• On that CVM TV interview, you stated that during the interval between your departure from the Ministry of National Security and your arrival at Vale Royal, Dudus was tipped off. When were you informed of that? How reliable was that intelligence data? Have you any indication of how many times Dudus was tipped off? Was the tipping off done by telephone? Do you have any indication how many individuals were involved in the tipping off?
• Were you ever informed of the route taken by Dudus in his move from his location to Tivoli? Was Dudus somewhere in Plantation Heights when tipped off? Could you inform the COE of the route taken? Was there any attempt made to apprehend Dudus?
• Was Dudus monitored during his journey to Tivoli? How many persons were in the vehicle with Dudus? Was more than one car involved? Did your intelligence indicate if the occupants were armed or unarmed?
• Were you ever made aware of the exact location of Dudus within Tivoli at any time after that Vale Royal meeting?
• Can you to the best of your knowledge indicate if the security forces were monitoring Dudus in Tivoli up until the time of your departure from the JCF?
• Given the plans and procedures that you have said were in place, is it your considered view that if Dudus was apprehended before your departure from the JCF, the "collateral damage" would have been significantly reduced.

National Security Violations

"There can be no secret anywhere in Jamaica that allows the breach of the citizen's constitutional rights."

Frank Phipps Q. C.
Manatt COE Feb 2, 2011

• The four MOU's were classified as secret documents executed by the then Minister of National Security and Justice, Dr. Peter Phillips, and security agencies of the US and UK Governments.


• So "SECRET" was the classification that they could not be located in the Ministry of Foreign Affairs, not seen by those in the office of the Director of Public Prosecutions (DPP) and apparently not located in the Ministry of Justice - specifically in the Solicitor General's Department.


• There is no evidence to date that the mystery memoranda were discussed by the Cabinet or brought to the Parliament of Jamaica.


• The plot thickened when it was revealed that the representatives of the US Government purported to rely on such memoranda but refused the GOJ request for copies.



The Happenings




• It now turns out that the Attorney representing the JLP appears to have had in his brief a copy of memoranda and had in fact offered to supply a copy to fellow counsel from as early as January 17, 2011.


• From the manner and detailed reference to the mystery memoranda by the Attorney representing PM Golding, it is reasonable to infer that he too may have been supplied with such information in his brief.



Preliminary Considerations




• The unauthorized possession of national security documents that have been coded "SECRET" is not protected by claims of attorney privilege. Moreover the quotation above is a political statement, laced probably with moral/philosophical justification, but devoid of any legal basis.


• Indeed we may be left to wonder if the forces that facilitated the unauthorized possession of classified documents to the attorney are the same ones that facilitated the unauthorized possession of classified documents to the fugitive.


• No civilized society can be run on the basis of any one man - irrespective of his legal acumen - deciding that national security classification of any document can be ignored because in his personal opinion such document "allows the breach of the citizen's constitutional rights".


• That does not provide any legal justification for his unauthorized possession or the sharing of such with elements in the media by facilitating forces. The recipients should be made to account for how they got illegal possession or unauthorized access to such highly classified national security documents.


• In some countries the "unauthorized possession of access to or control over classified documents" especially in the national security portfolio, is designated a felony (as opposed to a misdemeanor). In a world increasingly characterized by organized transnational criminal activity (and the concomitant widespread public corruption), respect for the classification of highly sensitive security documents is a necessity (even if not deemed desirable by some).
  

The Sharon Hay-Webster Case - Two or Twin?

Sharon Hay-Webster has been a Member of Parliament since 1997. The JLP has filed a claim No. 2010/HCV 06123 in the Supreme Court that Sharon Merle Hay-Webster at Nomination Day, August 7, 2007, was a citizen of the United States of America and therefore was not duly nominated. As such she was in contravention of section 40 (2) of the Constitution of Jamaica.

Published Information

The claim relies on an article published in the Sunday Gleaner April 27, 2008, the following are pertinent:

Hay-Webster

• was born in the USA in 1961,
• had a Haitian mother and a Jamaican father,
• came to Jamaica as a small child and has lived in Jamaica ever since
• as an adult applied for and received a US passport
• in 1987 applied for Jamaican nationality and took the Oath of Allegiance
  
• contends that she has "never used a US passport to leave or enter Jamaica" although she has traveled to some 43 countries.[emphasis added]
  

The Contention

The JLP's claim, brought in the name of Devon McDaniel - the losing JLP candidate in the September 3, 2007 general elections - asserts that Hay-Webster is a US citizen holding a US passport at the time of her nomination.

The claim conveniently ignores that Hay-Webster applied for Jamaican nationality and took the Oath of Allegiance after she had applied for and received a US passport. This may or may not provide a critical difference.

The situation is further complicated by a couple of unknowns:

• Did Hay-Webster renew her US passport after she gained Jamaican nationality?
• Although Hay-Webster stated that she had never entered or left Jamaica using a US passport, did she ever use a US passport to enter or leave the US or any of the 43 countries she has admitted visiting?
  

A Matter of Application

The Constitution of Jamaica has two sets of filters for an individual to be duly nominated as a candidate for election to a seat in Parliament. The first set of filters is contained in section 39 which states:

39. Subject to the provisions of section 40 of this Constitution, any person, who at the date of his appointment or nomination for election -

(a) is a Commonwealth citizen of the age of twenty –one years or upwards; and

(b) has been ordinarily resident in Jamaica for the immediately twelve months,

shall be qualified to be appointed as a Senator or elected as a member of the House of Representatives and no other person shall be so qualified.

Hay-Webster, at the time of her nomination, satisfied the conditions stipulated and was duly qualified provided that she was not caught by any of the disqualification conditions outlined in section 40 - the second set of filters viz:

Section 40

“(2) No person shall be qualified to be appointed as a Senator or a Member of the House of Representatives who –

(a) is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State:”

Likely Outcomes

1. If Hay-Webster renewed and traveled on a US passport to anywhere in the world after acquiring Jamaican nationality, she would have been disqualified following the decision in Abraham Dabdoub V Daryl Vaz et al.
   


2. If indeed Hay-Webster had applied for and received a US passport after she had taken the Oath of Allegiance for Jamaican nationality then she would have been disqualified.
   



3. If either of the above conditions existed then it is likely that Sharon Hay-Webster was never duly nominated not only in the September 2007 general election but in every general election in which she has been a candidate.



4. The stated intentions of Hay-Webster to renounce her US citizenship and not to contest the next general election are of no moment whatsover.
   

Challenging Hayles

It is being contended that on nomination day Ian Hayles had a valid US passport and was a citizen of the USA. Accordingly he could not have been properly nominated and following the recent established precedents his seat ought to be declared vacant.

The response has been that the court has no jurisdiction over such a matter as the time prescribed for election petition challenges has duly expired. That defence is procedural, however if Hayles had irrevocably renounced his US citizenship and surrendered his US passport before nomination day then such would have been a complete defence.

Court of Appeal Judgment

By-Election Predisposition

Introduction

A massive amount of time and resources have been devoted to the issue of the course to be properly taken once a victorious electoral candidate has been found to be "disqualified" under S. 40 of the Constitution of Jamaica.

Simply put, the crux of the matter is whether the second place candidate should, without more, be accorded the seat by the court; or that the said election be deemed null and void and a by-election ordered to decide the people's representative. This matter consumed inordinate amounts of energy - judicial and otherwise - due primarily to the silence of the Constitution on what recourse should be adopted in such circumstance.

A cardinal tenet of democratic government is that the people must decide their representatives and not a select grouping - no matter their qualification or status.

The Constitution of Jamaica fully recognized this imperative even though it expressly delegates the determination of questions as to membership of either House to the Supreme Court, or on appeal to the Court of Appeal. Such questions relate to (a) the validity of those so elected or appointed and/or (b) the member vacating his seat or ceasing to exercise any of his functions as a member [S.44(1)]

A Matter of Parity

The Constitution of Jamaica expressly declares the dilution or diversion of loyalty to Jamaica as offensive to the extent that such actions "disqualifies" a candidate for election as a member of the House of Representatives or appointment to the Senate. Furthermore, once a sitting member embarks on such offensive behaviour, a court can determine that his seat be declared "vacant". [S. 41(1)(d)(e)]

Interestingly, the Constitution of Jamaica treats such offensive behaviour by a sitting member more seriously than mere candidates to be elected or selectees to be appointed to wit:

41. (1) “The seat of a member of either House shall become vacant …………….

(d) if he ceases to be a Commonwealth citizen or takes any oath or makes any declaration or acknowledgement of allegiance, obedience or adherence to any foreign Power or State, or does, concurs, in or adopts any act done with the intention that he shall become a subject citizen of any foreign Power or State.” [emphasis added]

(e) if any circumstances arise that, if he were not a member of the House, would cause him to be disqualified for appointment or election as such by virtue of paragraph (b) or (g) of subsection (2) of section (40) of this Constitution.

At present, there are no penalties or restrictions to be imposed on the offending member if he purges himself to either be re-appointed or to contest the by-election. The recourse for the "more serious" offence is the seat being declared "vacant" and a by-election held. Albeit unstated, the "less serious" offence cannot attract a more serious recourse.

It is here contended that the Constitution of Jamaica is not predisposed to accord the seat to the losing candidate (or the second placed) if the winning candidate is declared "disqualified" ;or the sitting member's seat in the Lower House is declared "vacant" by reason of the said offending behaviour.

Concluding Comments

It is a pity that more focus was not attuned to the wording and implications of the provisions of the Constitution of Jamaica. Too often there is an over-reliance on deliberations of other courts from foreign jurisdications with a slavish intent of following the precendents set by others who (by nothing more than belief) are deemed to be wiser.

Sadly, the judgement of the Court of Appeal on this matter does not reflect any new thinking or instructive reasoning. It will not be of any moment in the development of so-called "Caribbean jurisprudence".

Intent of the Framers

It has become blasé to buttress one's position on any interpretation of the Constitution of Jamaica with the hallowed but hackneyed phrase "the intent of the framers". Perhaps the best way to clarify any ambiguity arising in the interpretation of the actual words and phrases employed in the document is to consult the said framers who are still alive, or their memoirs, personal notes, or interviews if the framers are no longer available.

As regards the "dual citizenship" vis-a-vis membership in either house, we have referred to the intervention of at least one of the framers - the Most Honourable Edward Seaga. Such a source may prove politically inconvenient to some, but in the absence of public interventions from a more politically convenient source, we are forced to accept Seaga's clarification.

Another method of ascertaining the "intent of the framers" of the Constitution of Jamaica rests with the application of one the cardinal principles of interpretation of any constitution - internal consistency. The various provisions of such a document must be interpreted in such a manner as to effect harmony and internal consistency of the entire document. The provisions of the Constitution, being itself the Supreme Law, cannot be in conflict with each other for the Constitution itself declares any law found to be inconsistent with the said Constitution to be null and void.

Interestingly the Constitution of Jamaica once contained a section, as discussed before, dealing with "Deprivation of citizenship on acquisition or exercise of rights of another citizenship".

8. (1) If the Governor ­General is satisfied that any citizen of Jamaica has at any time after the fifth day of August 1962 acquired by registration, naturalization or other voluntary and formal act (other than marriage) the citizenship of any country other than Jamaica, the Governor General may by order deprive that person of his citizenship.

(2) If the Governor General is satisfied that any citizen of Jamaica has at any time after the fifth day of August 1962 voluntarily claimed and exercised in a country other than Jamaica any rights available to him under the law of that country, being rights accorded exclusively to its citizens, the Governor ­General may by order deprive that person of his citizenship.

It is untenable to interpret or conclude that the Constitution of Jamaica does not bar its citizens possessing any number of additional Commonwealth citizenship from citizenship from sitting in either house (as Panton P. has done) when the very same Constitution specifically authorizes the depriving of that individual of his Jamaican citizenship on the grounds that he has "voluntarily claimed and exercised in a country other than Jamaica any rights available to him under the law of that country, being rights accorded exclusively to its citizens".

The operative phrase is "a country other than Jamaica". Those who adhere to the view that the phrase "foreign Power or State" utilized in Disqualification and Vacancy provisions for membership of the Senate or House of Representatives [Sec.40(2)(a)], [Sec. 41(1)(d) exempts Commonwealth states face an insurmountable hurdle.

It cannot be that the Constitution of Jamaica at one and the same time does not bar a Jamaican citizen who has acquired citizenship in any number of Commonwealth states from being elected to sit in the House of Representatives or appointed to the Senate, but contemplates the deprivation of his Jamaican citizenship precisely on those very same grounds. Moreover it cannot be argued that the phrase "a country other than Jamaica" fails to capture Commonwealth countries.

Admittedly S. 8 has been amended subsequently. Nevertheless, reference is highlighted in an attempt to discern the "intent of the framers" at a particular point in time. Perhaps today's framers will have a different intent. Whatever the intent the interpretation of the provisions of the Constitution must be internally consistent.

Missed Opportunity - Commonwealth Citizenship

The Court of Appeal did not address the interpretation of the phrase "foreign Power or State" in S.40(2)(a) of the Constitution of Jamaica. This was a missed opportunity since the interpretation to be accorded to the said phrase is central to any discussion of "dual citizenship" in the Jamaican polity.

This omission may be justified by the fact that the issue was not raisd before the Court in the Dabdoub/Vaz appeals as it was fully recognized that the USA was a "foreign Power or State."

The issue not being properly before the Court, the matter should have been avoided. Indeed it is only Smith J.A. who did not venture an opinion on divided loyalty as regards membership in the House of Representatives.

Panton P. :

35. "The framers of the constitution clearly intended that Jamaicans who by their own act sought and received non-Commonwealth citizenship, or having not so sought it, nevertheless voluntarily acknowledged allegiance to such countries, should not sit in the House of Representatives. It does not matter that they were born in Jamaica. It is a notorious fact that over the years many Jamaicans have acquired foreign citizenship, and many others are constantly in the process of seeking such status. If they choose a distant autocratic, unfriendly Commonwealth country for citizenship status, they can still serve in the House of Representatives." (page 25)

Panton P. offered no analysis of the relevant provisions of the Constitution of Jamaica dealing with Commonwealth citizenship and/or loyalty,obedience and allegiance. The matter was not canvassed before the court and the learned President failed to put forward any jurisprudential reasoning, legal precedent or even historical factors to support such a position. Probably at best this is merely a belief held by the learned President best expressed at social gatherings rather than in a Court of Appeal judgement from which there is no appeal.

Closer examination of this expressed opinion reveals legal imprecision. The offence is not confined to those "who by their own act sought and received non-commonwealth citizenship". It also applies to a sitting Member who "does, concurs in or adopts any act done with the intention that he shall become a subject or citizen of any foreign Power or State" [Sec. 41(1)(d)] Hence if a Jamaican member of the House of Representatives seeks non-Commonwealth citizenship, whether or not he is successful, he is disqualified from sitting.

Furthermore, Panton P. has excluded himself from adjudicating on any future challenge involving a Jamaican prospective or sitting member obtaining citizenship in other Commonwealth countries.

"If they choose a distant autocratic, unfriendly Commonwealth country for citizenship status, they can still serve in the House of Representatives."(page 25)

Is this a correct interpretation of the provisions of the Constitution of Jamaica? Is this what the "framers of the constitution intended"? Does this accord with the reasonable inferences to be drawn from the judgement of Chief Justice Zalia McCalla in the said matter below at first instance? Is the learned President wrong in both law and fact?

Indeed it appears that the learned President is alone ;for whereas Smith J.A. rightly remained silent on an issue which was not before the court, Harrison J.A. felt moved to disagree - albeit with the similar shortcomings of the learned President's obiter dicta.

"It was and still is the intent of the framers of the Constitution that only persons who have undivided loyalty to Jamaica should be elected to Parliament or appointed to the Senate." (page 74)

Ask the Framers

A lot of time and energy have been devoted to what has been loosely called the "DUAL CITIZENSHIP DEBATE". Much interest has been accorded to the status of Jamaican citizens who have voluntarily acquired citizenship status of other Commonwealth states. More specifically, are such persons disqualified under Section 40 .2 (a) of the Constitution of Jamaica from either being elected as Members of Parliament, or appointed to the Senate?

There are a number of ways to ascertain the true intention of the framers of the Constitution of Jamaica. The first is quite evident: read the words used in the section and employ a literal meaning. In case of some ambiguity, resort can be had to how similar sections and phrases used have been interpreted in other Commonwealth jurisdictions in the event that courts in Jamaica have not clarified the situation. However, there remains another avenue: ask the framers if they are still around, or consult their writings on the subject if such is available.

We in Jamaica are fortunate. Still in our midst are two such persons who were intimately involved in the process. One is reported to be The Most Honourable Edward Seaga--a former Prime Minister, the other Mr. David Coore Q.C.--a former Minister of government. Both were Members elected to the Lower House. Mr. Seaga has sought to contribute to this debate. Given the handing down of the Court of Appeal's written reasons for upholding the Chief Justice's ruling, it is appropriate to highlight this insightful analysis.

Loyalty to Country published in the Jamaica Gleaner: Sunday August 19, 2007

Edward Seaga, Contributor

A good deal of public interest has been aroused about the question of citizenship and loyalty.

Many people who are residents of Jamaica have their roots in a foreign country where they were born. They love Jamaica but their loyalty is to the country of their birth.

Many others find themselves in the opposite set of circumstances: they were born in Jamaica but have migrated to another country where they have taken up citizenship. But they still remain loyal to Jamaica.

Still others are born here, have their residence in Jamaica but have become citizens of another country.

most migratory people

It is not surprising that these variations exist. Jamaicans are among the most migratory people in the world. Any country which has as many of its people living abroad as at home, as Jamaica does, must have the distinction of being world migrants.

Modern constitutions allow for these multiple linkages. Hence, it is possible to have citizenship of more than one country, mostly dual citizenship. In many countries it is possible to hold more than one passpor generally, the authorities frown on this. A good many Jamaicans in the diaspora probably fall into this category. They enjoy the best of both worlds, holding both a Jamaican passport and the passport of another country.

Dual citizenship

Dual citizenship allows privileges in both countries. These privileges are broad enough to allow a dual citizen to enjoy educational benefits in one country and health benefits in another. In some cases, a dual citizen can vote in both their country of residence andcountry of birth. But one thing a dual citizen is very unlikely to do is to hold passports in both countries and become an elected or appointed Member of Parliament. This is where the factor of allegiance to the country, or loyalty, arises. A government must be certain about the loyalty of its citizens. A citizen who is disloyal can face serious penalties, including treason, depending on how far the disloyalty is taken.

Government safeguard

The Government of Jamaica provides this safeguard in the Constitution. A Jamaican citizen who has fulfilled the requirement of citizenship of another country, taking an oath of allegiance, or obtaining a passport to certify identity, cannot be constitutionally elected or appointed to a seat in the Jamaican Government because one person cannot hold allegiance to two flags.

The Constitution of Jamaica, in Section 40 (2) sets out clearly that:

"No person shall be qualified to be appointed as a Senator or elected as a member of the House of Representatives who ...

(a) is by virtue of his own act, under acknowledgement of allegiance, obedience, or adherence to a foreign power or state."

This provision of the Constitution has several important consequences:

(i) "Any person seeking election or accepting appointment to the Jamaican Parliament who is a citizen of another country can be disqualified."

But persons born in a foreign state are not disqualified by virtue of origin of birth alone, since they would not be responsible for their place of birth, unless they performed an act to demonstrate their allegiance to another country. Such an act includes obtaining a passport. This is to ensure that no penalty is applied on the basis of birth alone.

(ii) Disqualification is not automatic. The sanctions for a breach have to be declared in a court of law as a result of a petition brought before the court by a person who has sufficient cause. Hence, in an election, if the successful candidate is a citizen of another country and holds a passport of that country, thena petition from persons in the constituency can result in the winner losing his or her seat.

In such a case, the court would order a by-election to run the seat again, at which time the candidate with a foreign passport would have a chance to renounce his foreign citizenship before the by-election in order to successfully contest the seat in accordance with the Constitution.

(iii) It is popularly believed that this provision of the Constitution does not apply to Commonwealth countries. This is not true. Every other country is a foreign state in the Jamaican Constitution. Hence, the disqualification applies to Canada, the United Kingdom, Nicaragua, Bahamas, and all others. A Jamaican holding a Trinidadian, Grenadian or other passport would be liable to disqualification if they contested a Jamaican election.[emphasis added]

This provision of the constitution would prevent any member of the diaspora from accepting appointment to the Senate unless they renounced their foreign citizenship - an unlikely act.

I understand that possibly one dozen candidates currently campaigning for seats in the August 27 general election have found themselves with this problem. If they are successful in winning their seats they could face a decision of the court which could overturn the electoral decisions, leaving them to face by-elections. This could keep the final outcome of the election in suspense for months, if there was a narrow win.

Problems of dual citizenship

I faced the problems of dual citizenship because of my birth in the United States, over which I had no control. I voluntarily renounced my American citizenship in 1959. I did not have to. I could have retained it and still become a member of the Jamaican Government by simply not obtaining an American passport, or performing any act of allegiance to the United States. But I did not go part-way. I decided to remain a Jamaican only at the expense of surrendering my American citizenship, making me undisputedly a citizen of Jamaica and Jamaica only.

These decisions are hard to make and preferences are usually personal, but preferences for parliamentarians should be directed to country, not to self, for anyone to be worthy of representing their country with integrity.

I trust that those persons who get a second chance to renounce their foreign citizenship to qualify as a candidate will do the right thing.

The Chief Justice's Ruling - Dabdoub v Vaz

The Court of Appeal has handed down its written reasons for upholding the ruling of the Chief Justice.In order to fully appreciate the reasoning, it is prudent to place such in the context of the deliberations before the Supreme Court. The Chief Justice goes into detail the arguments that were pertinent to her decisions.

As is the pattern, such is posted without any comment.

For what it is worth, my comments have been posted in earlier blogs: notably Beyond McCalla and Lessons for Parliamentarians.

Dabdoub v Vaz[1]

Publish at Scribd or explore others: Wills and Trusts Business & Legal dual citizenship jamaican constitutio