Questionable Conduct: The Jamaican Political Reality

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 ...

Introduction Some Jamaicans enjoy the protection and privileges of being citizens of other countries. Most are citizens of Jamaica only. Indeed many with citizenship of more than one state – and even as many as two more – have played critical roles in the development of Jamaica. In reality the Jamaican state recognizes that Jamaican citizens may be citizens of other states but does not prescribe any limitations on the number. However, the Constitution of Jamaica prescribes certain limitations on those enjoying multiple citizenship in so far as their participation in the Parliament. Such limitations – termed “qualification” and “disqualification” are specifically stated in Section 39 and Section 40 respectively. Section 39 The individuals seeking membership in the Senate and House of Representatives must be (a) a Commonwealth citizen of at least 21 years old; and (b) has been ordinarily resident in Jamaica for twelve months prior to appointment to the Senate or nomination for election t...