Questionable Conduct: The Jamaican Political Reality

As noted previously Daboudb's submissions are interrelated and intertwined. In responding to Vaz' appeal of the Chief Justice's ruling, Dabdoub submits inter alia: The Respondent Dabdoub being the only candidate qualified to be elected and the only candidate who was duly nominated , is as a matter of law and by operation of the Representation of the People Act and the Constitution of Jamaica to be returned as the duly elected Member to the House of Representatives. Dabdoub, having served Notice of and the facts giving rise to Vaz' disqualification be so notorious and known to the electors that the Respondent should as a matter of law be returned to the House of Representatives. Having regard to the Chief Justice's own interpretation of S.40(2)(a) of the Jamaican Constitution, it is submitted that the Notice of Disqualification met the legal requirements of stating the facts which gave rise to the Appellants Disqualification. It is submitted that the words used in

The response to Dabdoub's appeal against the Chief Justice's order for a by-election is centred around three main submissions. The concept of "votes thrown away" in relation to Parliamentary Elections being a doctrine reated under the English system of law is incompatible with the nature and structure of the Constitution of Jamaica. Furthermore, the concept of votes thrown away is unconstitutional. The express language of S.40(2)(a) of the Constitution of Jamaica requires a finding that the individual has conducted himself in doing some action which acknowledges allegiance, obedience or adherence to a Foreign Power or State. The facts in the Notice of Disqualification were unclear, indefinite and uncertain . The detailed submissions are set out below: Publish at Scribd or explore others:

Abraham Dabdoub's appeal against the Chief Justice's ruling can be divided into two overlapping and intertwined phases: That the Chief Justice erred in law by failing to award the seat to the only duly nominated candidate on Nomination Day, August 7, 2007 in the constituency of West Portland; and That the Chief Justice erred in law by failing to recognize and properly apply the distinction between " status " and " conduct " in coming to her decision on disqualification based on dual citizenship. Numerous cases on votes being declared to be "thrown away" and the next candidate being duly seated by the court are cited. The detailed submissions are set out below: Publish at Scribd or explore others: Law

Daryl Vaz has appealed the Chief Justice's ruling that: On Nomination Day, August 7, 2007, he was not qualified to be elected to the House of Representatives for the constituency of West Portland; Vaz' nomination on that day in invalid, null and void and of no legal effect. Hence he was not duly returned or elected as a Member of the House of Representatives. In sum the Chief Justice found that Vaz at the time of his nomination was in breach of S.40(2) (a) of the Constitution of Jamaica, viz: " 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 any acknowledgment of allegiance, obedience or adherence to a Foreign Power or State " Vaz' appeal against the disqualification based on his dual citizenship is centred around: The Chief Justice failed to give effect to the plain meaning of the words of S.40(2)(a); The disqualification does not apply to dual nationals w

The arguments are in; they now await judgement of the Court of Appeal - the final arbiter in matters involving the Election Petition Act. The judgement of the Court of Appeal will be decisive as it will affect the fate of a number of the sitting members of the House of Representatives as well as those appointed to the Senate . The most profound effect could be the calling of a series of by-elections or a general election - depending on the ruling of the court. The judgement is expected in early 2009 - in excess of 1 1/2 years since the new Parliament was convened. That cannot be a satisfactory situation where the very composition of the said Parliament is being questioned. The matters in issue involve the interpretation of provisions of the Constitution of Jamaica - ostensibly the supreme court of the land. Dependent on the nature of the ruling, it could be inferred that there has been either a conspiracy to subvert the constitution or a sacrifice of the constitution on the altar of p

There is growing public confusion surrounding the status of Commonwealth citizens and Commonwealth states in the dual citizenship debate. The confusion is fueled by: The basic qualification of being a Commonwealth citizen - Section 39(a); The seat of a member of either house becoming vacant if he ceases to be a Commonwealth citizen - Section 41 (1) (d); The disqualification and vacancy provisions of being under any "acknowledgement of allegiance, obedience or adherence to a foreign Power or State" - Section 40(2)(a) and Section 41 (1)(d) respectively The Constitution of Jamaica is silent on the interpretation to be accorded to the phrase "foreign Power or State". Some attorneys-at-law and public commentators are of the view that Commonwealth states are exempt from the said categorization. The issue is of paramount importance as there are Members owing allegiance to Commonwealth states other than Jamaica in both Houses. The Supreme Court and Court of Appeal are empo

(Unedited Version) The composition of the Senate is specified in the Constitution of Jamaica. Section 35: The Senate shall consist of twenty one persons who being qualified as appointment as Senators in accordance with this Constitution have been so appointed in accordance with the provisions of this section . Thirteen are appointed on the advice of the Prime Minister - Section 35(2) and the remaining eight on the advice of the Leader of the Opposition - Section 35 (3). The disqualifications for membership in the Senate are similar to that of the House of Representatives. Accordingly, the judgement handed down by McCalla CJ. is applicable to members of the Senate insofar as it relates to the interpretation of Section 40 (2) Amazingly, the Senators have maintained a stony silence and continue to find solace as they remain outside the glare of public attention which is focussed, albeit temporarily, on members of the Lower House. Such non-response engenders the presumption that none is &q

Both the Prime Minister and the Speaker of the House of Representatives have conveniently confused calls for declaration of citizenship status by Members of either House with the determination of questions as to membership of either House. The Chief Justice of Jamaica has determined that individuals who have renewed their US passports and travelled thereon are disqualified from being validly elected or appointed as a Member of either House. Proponents of the impotence of the Speaker, in the matter of requiring a declaration by individual members, have sought to rely on Section 44 (1) of the Constitution which states: Any question whether - a. any person has been validly elected or appointed as a member of either House; or b. any member of either House has vacated his seat therein or is required, under the provisions of subsection (3) or subsection (4) of section 41 of this Constitution, to cease to exercise any of his functions as a member, shall be determined by the Supreme Court

It must be noteworthy that the editors of two Jamaican newspapers have echoed the call for Members of Parliament to declare their citizenship status. From as early as September 13, 2007 the Sunday Herald wrote: “The Jamaican Constitution is very clear regarding who can be elected to the House of Representatives or be appointed to the Senate. No person shall be qualified to be appointed as a senator or elected as a member of the House of Representatives who by virtue of his own act acquires citizenship of a foreign power. The legal issues aside, on what grounds are persons who are citizens of another country allowed to sit in our parliament and make laws, which we are obliged to obey? Such persons can catch the next plane and go home if anything goes wrong without being accountable. Additionally, is it right for tax dollars to be used to pay members of Parliament who are foreigners? And is it not dishonest for persons whether representing the People’s National Party or the Jamaica Labo

“It is abundantly clear that the constitution does not confer on every Jamaican citizen the right to be elected as a Member of the House of Representatives.” McCalla CJ. There have been calls to abolish the constitutional provisions which stipulate the requisite citizenship status of the Members of Parliament and Senators. It is being mused that given the age of globalization and the significant financial importance of the Jamaican Diaspora, the current provisions are obsolete, inimical to good governance and provide an unnecessary obstacle to the development of the country. It is being proposed that there should be a full public debate and the requisite procedures invoked to amend the now controversial provisions. Pre-Conditions The need for constitutional reform cannot be disputed in light of the changing world environment and the local socio-political realities which a fundamentally different from those informing its conception. It is also evident that th

It can be argued that there are certain positions within the administration of any independent nation-state which should be held by people having undivided allegiance to the nation-state involved. These positions are of critical importance to the conduct of the nation's interaction with the international community, and symbolize the emotional aspect of being an independent state - that is, national identity. The list includes, but is not limited to: . Legislators - MPs and Senators (especially Prime Minister and Leader of the Opposition) . Governor General . Chief of the Defence Force . Attorney General . Solicitor-General . President, Court of Appeal . Chief Justice . Members of the foreign service serving overseas. People holding those positions should have allegiance to the host country only. They should possess exclusive citizenship during their tenure. It matters not if they enjoyed multiple citizenships prior to consideration for the positions listed. However, they should

Applying the Ruling Chief Justice McCalla has ruled that the renewal of and travel on a US passport by an adult Jamaican are indicative of “ acknowledgement of allegiance, obedience or adherence to a foreign Power or State” as outlined in Section 40 (2) of the Constitution of Jamaica. Consequently, such disqualified the individual from being duly nominated as a candidate for elections to the Parliament. Section 39 contains similar wording. Applying McCalla’s ruling such also disqualified an individual from being appointed to the Senate. Another application relates to a seat of a sitting member becoming vacant - Section 41(d). Hence if the member acquired a US passport- irrespective of whether or not he uses it -after assuming the relevant position in the House, the seat shall be declared vacant. The situation is quite straightforward where, as an adult, the individual indulges in any act which may be indicative of channeling allegiance to another state (except Jamaica ). According to

On November 26, 2007 the Gleaner published an editorial entitled “ When the Constitution is not a Shackle ” addressing the reported calls for Stephen Vasciannie to withdraw his application to be appointed Solicitor General and the buzz about the plans by the Prime Minister to fire the members of the Public Services Commission (PSC). Displaying apparent presentiment at the time, the editor encouraged Vasciannie and the PSC to seek the courts protection in the event that their recommendation of Vasciannie was rejected and/or they were fired. The stout assertion was made that “fundamental principles, particularly, the notion of the Constitution as the supreme law, are at stake”. Weeks later both incidents occurred. Recently RJR reported in relation to the Daryl Vaz v Abe Dabdoub case that Prime Minister Bruce Golding is determined that Mr. Dabdoub will not gain entry to the House of Representatives by way of the courts. The following comments have been attributed to the Prime Minister:

Jamaica Gleaner Contributor, Martin Henry has written an interesting article entitled “Victory for the rule of law” published on Sunday, April 20, 2008 . In his last paragraph Henry stated: " A troubled citizen's concerns about the legitimacy of laws passed in the past with the participation of MPs who may have been in Daryl Vaz's dual-allegiance position was published as The Letter of the Day by The Gleaner last Wednesday [April 16]. Lawyer Dr Paul Ashley made a great deal out of the same issue when we both appeared on the TV programme Impact on that same day. The Constitution dissolves these fears in the wisely anticipatory provision of Section 51 (2): "The presence or participation of any person not entitled to be present or to participate in the proceedings of the House shall not invalidate those proceedings." Interpreting legal provisions is an exercise fraught with dangers, especially if one is not acquainted with the rules governing interpretation. Without

There are numerous inescapable inferences from the ruling of McCalla C.J. in the Abraham Dabdoub/Daryl Vaz matter. Lesson 1 : Those Members of Parliament who are holders of valid US passports are in contravention of Section 40 (2)(a) and Section 41(1)(d) of the Constitution of Jamaica. If they had obtained the passport prior to Nomination Day, then they were not qualified to be elected. If they had obtained the passport after taking their seats, then those seats shall become vacant. Lesson 2 : If the action is properly brought before the Court and cogent admissible evidence is produced to substantiate the claims (at least the validity and use of the US passport), then the Court is likely to order a by-election. Lesson 3 : The underlying issue is not that of the possession of a US passport and its usage. Rather, the crux is the “declaration or acknowledge of allegiance or adherence to a foreign Power or State”. The possession and use of a passport issued by a for

(Unedited Version) The Budget Debate is a critical exercise in outlining the measures by which the Government intends to raise revenue to fund its programmes and the business of the bureaucracy. The bill is ultimately passed by the legislators thereby giving effect to the adage: “No taxation without representation.” The principle is the rationale why many bills must originate in the Lower House (Parliament) where the people’s representatives have the sole authority to bring matters of taxation. The Chief Justice of Jamaica has interpreted the Section of the Constitution of Jamaica dealing with those qualified to be elected or appointed to the House of Representatives. The ruling has the effect of deeming those Members of Parliament and Senators holding US passports ineligible to sit in the Parliament of Senate. This has profound implications for the passage of the Budget as there are numerous Members on both sides of the aisle who are in this offending position. Profound Questions Can

There has been a lot of public debate on the pros and cons of the Prime Minister calling a general election to solve the dual citizenship calamity in which the Government is now embroiled. The circumstances are: Ø Members on both sides of the aisle in the House of Parliament are said to be in possession of dual citizenship – particular valid US passports and have travelled on such since Nomination Day. Ø A number of election petitions regarding the qualification/disqualification of successful candidates are pending in the courts Ø Some Members of the House have taken steps in the revocation process; some have remained silent, hoping that their dual citizenship status cannot be proved via evidence admissible in a court of law. The Prime Minister faces a political dilemma. Ø Does he wait until the court actions have been exhausted? Ø Does he enquire into the citizenship status of all JLP Members of Parliament? Ø Does he play for time by calling a

“It is abundantly clear that the Constitution does not confer on every Jamaican citizen the right to be elected as a Member of the House of Representatives.” per McCalla CJ. in Abraham Dabdoub v Daryl Vaz et al. There have been calls to abolish the constitutional provisions which stipulate the requisite citizenship status of the Members of Parliament and Senators. It is being mused that given the age of globalization and the significant financial importance of the Jamaican diaspora, the current provisions are obsolete, inimical to good governance and provide an unnecessary obstacle to the development of the country. It is being proposed that there should be a full public debate and the requisite procedures invoked to amend the now controversial provisions. A Pre-Condition The need for constitutional reform cannot be disputed in light of the changing world environment and the local socio-political realities which a fundamentally different from those informing its conception. It is also

The Chief Justice of Jamaica has handed down a definitive judgement on the interpretation to be given to section 40 (2)(a) of the Constitution of Jamaica. That judgement is on appeal. However, as it stands, there are very serious implications in respect of composition of the Parliament and the Senate. Inescapable Inferences The judgement has certain inescapable inferences: It is an inescapable inference that any sitting Member of the House of Representatives in possession of a valid US passport is in violation of Section 41(d) and as such that seat shall become vacant. It is an inescapable inference that any sitting member of the House of Representatives that as candidate in the elections who as an adult merely possessed and utilized a US passport (whether obtained fraudulently or not) was ineligible to be properly nominated. That assumes that the candidate did nothing to renounce his allegiance to that foreign State. The Parliament The Speaker has an overarch

Consternation : Some amount of consternation has been generated by the treatment of “Commonwealth Citizens. Of particular concern is the concluding comment that: “If an adult Jamaican citizen by virtue of his own act acquires the nationality of another state – be it Commonwealth or otherwise – he is disqualified. However an adult Commonwealth citizen living in Jamaica for a year satisfies the condition of Section 39 whether or not he acquires Jamaican citizenship.” The consternation lies with adult Jamaican who have acquired citizenship of other Commonwealth countries – for example Britain , Canada , Barbados and Grenada to mention a few. Some have lived and studied in the respective territories and being duly qualified were successful in their application. Others found it necessary to take out some “insurance” in the heady days of the ideological 70’s. Indeed, there was the belief that citizenship in other Commonwealth territories meant that as a “Commonwealth Citizen” – albeit

“Commonwealth” not “Foreign” Some proponents of the view that Commonwealth states are not included in the term “foreign Power or State” seek to advance the following:  Chapter II of the Constitution of Jamaica deals with Citizenship. Section 12 gives the following interpretation: “Foreign country” means a country (other than the Republic of Ireland) that is not part of the Commonwealth; Hence, the term “foreign Power or State” should be construed in accordance with that of “foreign country.” As mentioned before, the proponents have yet to produce any judicial interpretation to substantiate their position. Moreover, it may be convenient to ignore that (a) the section being relied upon begins “In this Chapter – “. The interpretations are specific to Chapter II; (b) “foreign country” is not necessarily synonymous with “foreign State or Power.”  In relation to those holding Canadian, British or even Barbadian citizenship in addition to their Jamaican citizenship, it is being argued that