Friday, April 11, 2008

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.

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