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.

1 comment:

Anonymous said...

Doesn't the holder of a green card also have some far reaching obligations under US law which could be interpreted as an acknowledgement of allegiance to that country?

I am a little concerned though and I respect your opinion, that we could all get lost in the minutae of this argument while ignoring the spirit of the constitution. It strikes me that most persons holding foreign passports have actually demonstrated more loyalty to the Jamaican state than those who do not. This as they have the option of leaving Jamaica but most never do, but if you recall that infamous Stone Poll of the 1980's most Jamaicans at that time wished Jamaica to become a US State because they wished to leave. I see no reason to think that the fundamental sentiments have changed. I am just worried though that we are now engaged in a debate that is not founded out of genuine concern about constitutional breaches but merely an opportunistic thrust to acquire political power by way of a scenario that could well trigger social upheaval. The law may well be accomodating but the social and political reality will not. I care nothing for Vaz or Dabdoub for that matter but this particular strategy has implications for our nationals who reside in "foreign states" and is not a trivial and selective pursuit.

Good Blog