Monday, April 28, 2008

BEYOND McCALLA – The Other Citizenships

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 McCalla, the individual may have dual citizenship and be qualified; but once he activates that other citizenship after activation of his Jamaican citizenship then he is disqualified. In other words, if the other citizenship remains dormant – not acknowledged by acts done by the individual – then that Jamaican is not offending Section 40 (2) of the Constitution.

Going Beyond

The court was not asked to interpret the phrase “foreign Power or State”; nor was it concerned with citizenship of other states, especially the Commonwealth. It has been contended by legal pundits that the situation would have been fundamentally different if the respondent was the holder of a British, Canadian or Barbadian passport.

In the absence of supporting legal precedent some have resorted to belief. Others to the one- family proposition and a few to the basic qualification of being a Commonwealth citizen Section 39(a) and cessation in Section 41(d) of the Constitution.

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 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 they have sworn allegiance to the same sovereign power – Her Majesty. Hence these Commonwealth countries with Her Majesty as Head of State cannot be classified as “foreign.”

The argument – although comforting to the holders of such citizenship – fails to surmount a basic constitutional reality. With regard to legislative and governmental matters, the Head of State of say Jamaica is the Queen of Jamaica; the Head of State of Australia is the Queen of Australia; the Head of State of Canada is the Queen of Canada. Her Majesty occupies a number of distinct legal personalities and each in its exercise of its sovereignty has no legal consequences for the other. For example, for Jamaica the United Kingdom would be classified as “a foreign power”, so too would Canada and Barbados. Furthermore each of these sovereign states has its own rules in respect of nationality and their citizens owe different allegiances.

Some attorneys-at-law currently sitting in our Parliament have vehemently opposed the interpretation and analysis advanced. It has become necessary to go into further detail about the constitutional position on the subject of “Commonwealth Citizen” as this is the base category (Section 39(a)) from which the composition of the Parliament is drawn.

The Constitution of Jamaica Section 9 (1) states:

“9.-(1) Every person who under the Constitution or any Act of Parliament is a citizen of Jamaica OR under any enactment for the time being in force in any country to which this section applies is a citizen of that country shall, by virtue of that citizenship, have the status of a Commonwealth citizen.”(emphasis added)

Note that the conjunction OR is used; and not the combination “and/or”. Hence, it is an exclusive rather than an inclusive condition. In so far as the Constitution is concerned a Jamaican is a Commonwealth citizen; so too are citizens of the territories listed in Section 9 (2) (3).

Real Scenarios

It must be highlighted that the base category outlined in the qualifying section, Section 39(a) speaks to “Commonwealth citizen” and not Jamaican citizen. In that sense the Jamaican citizen is treated no different from that of other Commonwealth states. Here are some interesting examples:

  • If an adult Jamaican by virtue of his own act acquires the citizenship of another Commonwealth state – he is disqualified.
  • If an adult Commonwealth citizen (who is not Jamaican) by virtue of his own act acquires the citizenship of another Commonwealth State (other than Jamaica) – he is disqualified.
  • If an adult Commonwealth citizen (who is not Jamaican) by virtue of his own act acquires Jamaican citizenship – he is not disqualified.
  • If an adult Commonwealth citizen being a Member of either House does anything to dilute divert or divide his allegiance to the Jamaican state – his seat stands to be declared “vacant”.

Concluding Comments

The real mischief that the Constitutional provisions seek to prevent is any dilution, division or dispersion of the allegiance to Jamaica by persons serving in the House of Representatives. Accordingly, once Jamaican citizenship is attained/obtained/activated, then allegiance and the acknowledgment thereof to any other nation-state is forbidden in respect of the Legislature. However, having obtained additional citizenships, then appropriate and timely renunciation- leaving Jamaican citizenship as the sole allegiance- satisfies the particular Constitutional provisions.

Sunday, April 27, 2008

Still Not a Shackle

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:

“I'm not going to allow anybody to sit in Parliament who was rejected by the people at the polls purely on the basis of some legal or constitutional technicality”

This statement should be cause for concern among all. The Prime Minister plays no role in determining who sits in Parliament save for any part he plays in the selection of members of his own party to run as candidates. The maxim “Democracy is the government of the people, by the people, for the people” does not mean that anyone who is voted for by the people is entitled to be the people’s representative. If the candidate is not qualified to run, then he is not entitled to be the people’s representative.

The Constitution of Jamaica is the supreme law of Jamaica. All laws must be made in accordance with the Constitution; and to the extent that they are inconsistent the Constitution will prevail.

Decisions of the court in relation to all laws including Constitutional law must be obeyed. If one fears or anticipates that a decision will be unfavorable, one should not seek to prevent the applicant from exercising his right of appeal. To dismiss it as a “technicality”, suggests that it is meaningless, useless, not worthy of application but worthy of contempt.

Mr. Dabdoub has the legal right to appeal to the Court of Appeal of Jamaica. A threat to call general elections in the event Dabdoub files an appeal or succeeds in the Court of Appeal could be interpreted as an attempt to circumvent that process or to extinguish that right. While the Prime Minister has the right to call general elections, it was imprudent to wield it as a big stick to impose, threaten or deny others who wish to stand up for the rule of law.

More fundamentally, the Court of Appeal is the final court in matters relating to election petitions. Golding’s comments could be interpreted not only as prejudging the merits of the appeal but exerting undue influence over the Court of Appeal, especially in light of the growing chorus that a general election is the last thing Jamaica needs at this time.

In his inaugural address at the swearing in as Prime Minister Mr. Golding pledged to curtail the powers of the Executive and strengthen Parliament in his bid to create a framework for good governance. This is laudable; but if the Prime Minister is to be taken at his word and trusted as new and different, he must be seen to respect the laws of Jamaica. Any acts which are imposed based on the whim of one man without regard for the rule of law are liable to be viewed as acts of dictatorship or tyranny. For as the referenced Gleaner editorial asked:

“If the Constitution is not a shackle to prime ministerial (mis)behaviour, what then is sacrosanct under the law?”

Sunday, April 20, 2008

Communication Error!

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 indulging in the rather laborious legalistic details, it is probably easier to make the following points:

  1. The distinctions between a “person” and “Member” is critical as the “House” is not a place (not Gordon House), but an institution comprising duly elected (being suitably qualified) Members in the case of Parliament and duly appointed (being suitably qualified) Members in the case of the Senate.
  2. The House must be properly constituted (as specifically outlined in the Constitution) before it can validly enact legislation, according to the procedures again outlined in the Constitution. For example there are provisions in respect of a quorum.
  3. Moreover, interpretation employed must not make the Section inconsistent with other provisions of the Constitution.

Henry’s position, as stated on Impact, is that Parliament does not need to police itself, for that is the role of the Judiciary. That position is in stark contrast to his interpretation of the so-called “wisely anticipatory provision”. The literal interpretation as applied by Henry would give rise to some questionable conduct since "presence or participation" could cover a myriad of circumstances. For example:

  • There would be no basis for judicial review of anything done in the House.

  • There would be no basis for the court to declare anything emanating from the House as unconstitutional.

  • The 1990 attempted coup by the Jamaat al Muslimeen in Trinidad when the Parliament was invaded during its sitting and Members held hostage would be covered under this Section. (Trinidad has a similar provision in its constitution)

  • There would have been no need for the House to have passed “The Ministerial and Parliamentary Functions (Phyllis Mae Mitchell) Validation and Indemnity Act 2007”.

The fears are exacerbated in the current political reality where the government enjoys a slim majority. There is widespread speculation that the separation of those members holding valid US passports could have severe and profound consequences for that margin. The fears are also justified when, for the vast majority of offending Members, there are no triable issues. It is a question of fact – they do not have to await a court decision or discovery. Maybe it is time for “Victory for Integrity”.

Respectfully the esteemed Communications Consultant has made a communication error. It would have been prudent to consult before communicating.

Saturday, April 19, 2008

Lessons for Parliamentarians

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 foreign Power or State is only one of the many circumstances indicative of such allegiance or adherence.

Lesson 4: The learned Chief Justice confined her ruling to the specifics of the matter. There was no need to expound on the interpretation to be given to the phrase “foreign Power or State” since all parties agreed that the USA is a foreign Power or State. The Members of Parliament who are holders of dual Commonwealth citizenship should be equally concerned. It can be argued that “a foreign Power or State” as utilized by the Constitution of Jamaica means “any Power or State except Jamaica”.

Lesson 5: The ruling has similar consequences for the Senators. If they are in possession of valid US passports, then they are not qualified to be appointed as Senators. Being deemed Members of the Upper House, those in contravention should tender their resignation immediately. Furthermore, those holding passports issued by countries other than Jamaica should not wait on the courts to disqualify them.

Lesson 6: The Nomination Papers need to be amended to include a clause requiring the prospective candidate to affirm that he is “a citizen of Jamaica only” – or words to that effect. This will put every candidate on notice.

If the lessons from McCalla CJ. are learnt by the political directorate of both political parties, then the only issue which remains is “How to correct the situation?”

Correction

The offending Members of the House of Representatives fear public embarrassment and the revelation of their citizenship status resulting in the separation from their positions. The Prime Minister has the power to finesse the exercise by calling a General Election. Such would facilitate those wishing to renounce foreign citizenship status in the hope of regaining their position; also those wishing to hold on to their foreign accolades thereby forgoing election or appointment.

Friday, April 18, 2008

Voiding the Budget

(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 such offending Members morally or legally participate in this exercise, knowing fully well of their dual citizenship status?
  • Will a budget passed with the participation of persons not “fit and proper” to be sitting in the House of Representatives be constitutional?
  • Can those who continue to blatantly violate the Constitution by their very presence avoid legal contamination of any legislation emanating from such a tainted Parliament and Senate?
Cleanse First

Awaiting the Court’s ruling on individuals who as adults applied for and obtained US passports (and they themselves are relying on legal technicalities) cannot be considered appropriate in the Westminster/Whitehall model of government. The offending Members know themselves. The Prime Minister and the Leader of Opposition have a duty to know. The contamination cannot be tackled in a piece-meal fashion by holding a number of by-elections at court-determined intervals. Parliament and the Senate must be constituted in accordance with the provisions of the Constitution before any attempt to pass legislation. To do otherwise runs the risk of emanations being declared unconstitutional and void ab initio.

Tuesday, April 15, 2008

Why A General - the dual citizenship debate (Part 5)

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:

  • ØMembers 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.
  • ØA number of election petitions regarding the qualification/disqualification of successful candidates are pending in the courts
  • ØSome 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 number of by-elections as the court determines?


Below are some of the considerations in favour of calling a general election as opposed to by-elections at court determined intervals.

  • ØThe constant mantra of Bruce Golding is in part an unswerving commitment to the Constitution of Jamaica and the rule of Law. It is therefore untenable for him to avoid ensuring that the Members of his team are properly and duly qualified to take their seats in the Parliament. This is not a matter of evidence, legal technicalities (such as proper service, time limitation et al.) or discovery by political adversaries.
  • ØIt makes little or no political sense opting for a by-election in which the JLP candidate was successful recently. It is only the JLP which will stand to lose what it already had. The PNP can only gain.
  • ØIf, as it is widely believed that the JLP’s election machinery is in a far better state than the PNP’s, then by opting for the general the JLP will stand a better chance of improving its slim majority.
  • ØTime is on the side of the PNP. Indeed if they are sincere in their protestations regarding a general election not being in the “best interest of the country,” then they should seriously consider announcing a boycott of any and all by-elections. That way there would be no contested election.
  • ØThe calling of general elections will obviate the public exposure of offending Members of Parliament. Some will renounce, others will elect not to run giving a myriad of public excuses. It matters not the reasons, so long as any future Parliament is properly constituted.
  • ØA set of rolling by-elections is time consuming, costly and facilitates political turmoil. This option is the bane of all investors – foreign and local. Of course some constituents would not mind a periodic injection of cash, especially in these hard economic times – a “buy” election if you will.
  • ØA general election would provide Bruce Golding with an opportunity to replace or retire some of those whose appointments were primarily rewards for long service, political loyalty or critical electoral assistance. In a sense it would be a “bye” election.

Election by Conspiracy

The view had been expressed[ by a no lesser person than a learned Queens Counsel] that there ought to be some agreement among the two major political parties that they would not contest any by-elections in order to oppose a Member of Parliament who has “dual citizenship” – read US citizenship.

Apparently, this agreement/understanding would be arrived at without public participation, probably at Vale Royal and foisted on the people.

That is fundamentally undemocratic and against the spirit and practice of modern day Constitutional rule. Furthermore, there is nothing to prevent other members of the wider public from contesting the by-election. Moreover that arrangement is based on the underlying assumption that the same two individuals would be the candidates in the up-coming by-election.

This ignores the fluidity of the partisan political reality – some will retire, others may opt out due to disenchantment or financial embarrassment and some may elect to hold on to that precious insurance – US citizenship.

Monday, April 14, 2008

Consequences of the Dual Citizenship Decision

“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 evident that those who are offending the present constitutional provisions are ineligible to participate in any parliamentary debate, ineligible to participate on any decisions on the topic, and ineligible to legislate any recommended amendments. The House of Representatives must be cleansed of all offending members prior to any such national debate.

Contending Perspectives

There are number of perspectives being advanced with substantial supporting arguments. These can be arranged into three broad categories:

  •  The Abolitionists argue that there should be no restrictions on anyone holding Jamaican citizenship from participating in the governance of Jamaica at any level.

  •  The Nationalists argue that only Jamaican citizens should be allowed in Parliament. Consequently the laws and regulations governing the process should be amended to read “citizen of the Jamaican state only” – or words to that effect.

  •  The Fence Sitters argue that there is no need for any amendment to the constitutional provisions in question. However the nomination papers should require that the proposed candidate states that he is not a citizen of any non-commonwealth state.

Full 100%

All three perspectives have some merit. The Jamaican Prime Minister and the Jamaican legislator should not have divided loyalties. They should be 100% Jamaican and unquestionably so.

The members of the Jamaican diaspora have made and continue to make formidable contributions to the socio-economic development of Jamaica. There is no constitutional bar to their involvement at any level of the Jamaican society except in critical governmental functions. If they wish to participate at that level, then they should simply renounce their acquired citizenship status and return to the 100% Jamaican status.

The Regulations need to be amended to ensure that each nominated individual affirms that he has no other citizenship than Jamaica. It is being contended that the amendment should not differentiate Jamaicans with dual citizenship by selecting the other type of citizenship that is allowed. It is either that we allow dual citizenship or disallow dual citizenship. Simply put; it is 100% Jamaican not 50% Commonwealth/50% Jamaican in our Parliament.

Politically, what is good for Jamaicans in the USA, must be the same for those in the UK, Canada, Singapore, Kenya and also for those in Barbados, Cayman or Cuba.

The above may prove controversial, suffice to say, the existing constitutional provisions may support that position – depending on the interpretation accorded by the courts.

Saturday, April 12, 2008

Over to You Mr. Speaker - The dual citizenship debate (Part 4)

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 overarching responsibility to ensure that the Parliament is at all times properly constituted and in harmony with the provisions regarding the composition, procedures and functions specified in the Constitution of Jamaica.

The Speaker of the House of Representatives can no longer ignore the fact that Members on both sides of the aisle are in possession of dual citizenship. Of course, the explanation may be advanced that he does not know this “as a fact” and such has not been officially brought to the attention of the Honourable House.

Well, in case the Members find it inconvenient to bring it to the attention of the Speaker because of the likely effect on both sides, then the Speaker cannot turn a blind eye to the Chief Justice’s ruling.

Action Not Bag -A- Mouth

  • The Speaker must now act: he must enquire into the citizenship status of each and every Member. This should be done within the full glare of the media with each Member answering in unequivocal terms. It is he people’s business.

  • Having obtained that information, the Speaker should ascertain from those admitting US citizenship whether they had a valid US passport on or after Nomination Day. This is critical because the operative date for qualification to be nominated as a candidate for elections to the House of Representatives is Nomination Day (Section 40(2)(a) applies to the circumstance). Furthermore, the seat will become vacant in certain circumstances mentioned in Section 41 (1) (d) –

“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.”

  • It must be emphasized that Section 41(1)(d) contains the substance of the circumstances outlined in Section 40 (2) (a) and goes further when it outlines the intention informing the action taken.
  • Having obtained the citizenship status of each Member, the Speaker must then remove from the House those who have admitted that they are in possession of a valid US passport and/or have traveled on a valid US passport since being a Member of the House of Representatives.

  • The Speaker may also enquire into whether any Member had renounced his US citizenship prior to Nomination Day or after taking his seat in Parliament.

Concluding Remarks

Those who are given the awesome responsibility to make laws and impose taxation must ensure that they themselves are acting in accordance with the Constitution as it stands.

The Speaker ought to be aware that even his decisions can be subjected to judicial review. He cannot ignore the inescapable inferences of a binding judicial decision, irrespective of the widespread electoral consequences.

The President of the Senate is in a similar situation and the action required is substantially the same.

The politics of the country must be elevated to the professed higher level.

That Commonwealth Citizen - The dual citizenship debate(Part 3)

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 twice or even thrice over – one could still participate in the Parliament of Jamaica.

Further Agony:

We have advanced some of the arguments why Commonwealth states – other than Jamaica – are regarded as “foreign Powers or States” in terms of the Constitution of Jamaica.

Some attorneys-at-law currently sitting in our Parliament have vehemently opposed the interpretation and analysis advanced. It has become necessary to go into further detail about the constitutional position on the subject of “Commonwealth Citizen” as this is the base category (Section 39(a)) from which the composition of the Parliament is drawn.

The Constitution of Jamaica Section 9 (1) states:

“9.-(1) Every person who under the Constitution or any Act of Parliament is a citizen of Jamaica OR under any enactment for the time being in force in any country to which this section applies is a citizen of that country shall, by virtue of that citizenship, have the status of a Commonwealth citizen.”(emphasis added)

Note that the conjunction OR is used; and not the combination “and/or”. Hence, it is an exclusive rather than an inclusive condition. In so far as the Constitution is concerned a Jamaican is a Commonwealth citizen; so too are citizens of the territories listed in Section 9 (2) (3).

Real Scenarios

It must be highlighted that the base category outlined in the qualifying section, Section 39(a) speaks to “Commonwealth citizen” and not Jamaican citizen. In that sense the Jamaican citizen is treated no different from that of other Commonwealth states. Here are some interesting examples:

  • If an adult Jamaican by virtue of his own act acquires the citizenship of another Commonwealth state – he is disqualified.
  • If an adult Commonwealth citizen (who is not Jamaican) by virtue of his own act acquires the citizenship of another Commonwealth State (other than Jamaica) – he is disqualified.
  • If an adult Commonwealth citizen (who is not Jamaican) by virtue of his own act acquires Jamaican citizenship – he is not disqualified.
  • If an adult Commonwealth citizen being a Member of either House does anything to dilute, divert or divide his allegiance to the Jamaican state – his seat stands to be declared “vacant”.

Concluding Comments

For those holding dual Commonwealth citizenship status they have to contend with the definition of the disqualifying term “foreign Power or State” which is a term of art with a settled definition under International Law and have been utilized in numerous decided cases.

Indeed, it must be of top priority that those duly sworn to uphold the Constitution of Jamaica are in harmony with the provisions of the said Constitution. That the provisions were not rigorously enforced in the previous Parliament is no justification for their continued non-enforcement. The public spotlight must first be turned on those who hold the highest positions in the state – they are accountable to the People of Jamaica via the Constitution. That is the first step for any country purporting to adhere to the Rule of Law.

Friday, April 11, 2008

Dual But Unequal - The dual citizenship debate (Part 2)

“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 they have sworn allegiance to the same sovereign power – Her Majesty. Hence these Commonwealth countries with Her Majesty as Head of State cannot be classified as “foreign.”

The argument – although comforting to the holders of such citizenship – fails to surmount a basic constitutional reality. With regard to legislative and governmental matters, the Head of State of say Jamaica is the Queen of Jamaica; the Head of State of Australia is the Queen of Australia; the Head of State of Canada is the Queen of Canada. Her Majesty occupies a number of distinct legal personalities and each in its exercise of its sovereignty has no legal consequences for the other. For example, for Jamaica the United Kingdom would be classified as “a foreign power”, so too would Canada and Barbados. Furthermore each of these sovereign states has its own rules in respect of nationality and their citizens owe different allegiances.

CONCLUDING COMMENTS

To put the argument here being advanced into sharp relief: If an adult Jamaican citizen by virtue of his own act acquires the nationality of any other 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.

Whilst recognizing “dual citizenship”, not all such are treated equally in so far as the composition of Parliament is concerned. It depends to a large measure on how such foreign status was obtained – manner and timing. Is there a need for constitutional changes reflecting the new realities? That is another debate.

Dual But Unequal - The dual citizenship debate (Part 1)

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 to the House of Representatives.

However the individual concerned must not fall within the disqualification clauses specified in Section 40.

Section 40


There are a number of conditions specified which would cause this adult Commonwealth citizen resident in Jamaica for the preceding twelve months to be disqualified from being appointed to the Senate or nominated for election to the House of Representatives. These include holding public office such as Judge of the Supreme Court, Judge of the Court of Appeal, member of a defence force; adjudged or otherwise declared bankrupt; certified insane; serving a sentence of six months or more; convicted of election related offence etc.

For the purposes of this discussion focus is confied to dual citizenship debate. Section 40 (2) states

“(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:”

ANALYSIS

 Section 9 gives meaning to the classification “Commonwealth Citizens”. Indeed such was deemed necessary in order to supplement the capabilities of the newly emerging sovereign state. The pool of expertise from the Commonwealth family was harnessed. Many of the officials of these ex-colonial territories hold British passports.

 The primary operative condition is “by virtue of this own act”. The individual must have been capable of doing the act and has chosen so to do. Moreover, that condition is not operative if it was occasioned by another, by operation of law, or by conditions outside the control/decision of the individual concerned.

 The condition outlined is not confined to the taking of an Oath of Allegiance – a necessary requirement of applications for citizenship. That acknowledgement of allegiance, obedience or adherence may be occasioned by membership in the defence force, holding important public office, national security or official representation roles.

 A “foreign Power or State” is any Power or State other than Jamaica. This construction is no doubt controversial although it is settled in International Law and appointed by a number of decided cases. The controversy is motivated primarily because it casts a wider net since it would include those who are holders of citizenship of Commonwealth states.