Saturday, April 12, 2008

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


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.

1 comment:

Anonymous said...

The only consideration worth debating here is when will the constitution be amended.