Monday, June 2, 2008

Commonwealth Clarification

There is growing public confusion surrounding the status of Commonwealth citizens and Commonwealth states in the dual citizenship debate. The confusion is fueled by:
  • The basic qualification of being a Commonwealth citizen - Section 39(a);
  • The seat of a member of either house becoming vacant if he ceases to be a Commonwealth citizen - Section 41 (1) (d);
  • The disqualification and vacancy provisions of being under any "acknowledgement of allegiance, obedience or adherence to a foreign Power or State" - Section 40(2)(a) and Section 41 (1)(d) respectively
The Constitution of Jamaica is silent on the interpretation to be accorded to the phrase "foreign Power or State". Some attorneys-at-law and public commentators are of the view that Commonwealth states are exempt from the said categorization. The issue is of paramount importance as there are Members owing allegiance to Commonwealth states other than Jamaica in both Houses.

The Supreme Court and Court of Appeal are empowered ,under Section 44, to deal with questions concerning the valid election or appointment of members of either House, or vacancy under Section 41 of the Constitution. The court could be moved to make a declaration of the interpretation to the phrase "foreign Power of State" as used in the Constitution. Any person, including the Attorney General, may institute such proceedings - Section 44(2).

We have posited the view, that in the absence of any definitive interpretation mandated by the Constitution, the settled interpretation under International Law becomes applicable. In short, any state other than Jamaica is "foreign" for the purposes of composition of Parliament.

Irreparable Damage

Currently, the divided allegiance issue is being dealt with in an ad hoc fashion as determined primarily by the courts. Consequently, the public is being kept in suspense whilst awaiting litigation procedures. Unfortunately the impression is given that mainly persons with US citizenship are being targeted. The Constitution of Jamaica has no inherent national discrimination. Indeed it would be tidier if all nationalities were put on the table regarding the composition of Parliament. The interpretation of the phrase "foreign Power or State" is central to this exercise. The integrity of Parliament should not be subjected to prolonged questioning. There is the real possibility of irreparable damage to institutions underpinning the foundations or our democracy. The process is taking much too long.

Sunday, June 1, 2008

The Sedated Senate

(Unedited Version)

The composition of the Senate is specified in the Constitution of Jamaica. Section 35:

The Senate shall consist of twenty one persons who being qualified as appointment as Senators in accordance with this Constitution have been so appointed in accordance with the provisions of this section.
Thirteen are appointed on the advice of the Prime Minister - Section 35(2) and the remaining eight on the advice of the Leader of the Opposition - Section 35 (3).

The disqualifications for membership in the Senate are similar to that of the House of Representatives. Accordingly, the judgement handed down by McCalla CJ. is applicable to members of the Senate insofar as it relates to the interpretation of Section 40 (2)

Amazingly, the Senators have maintained a stony silence and continue to find solace as they remain outside the glare of public attention which is focussed, albeit temporarily, on members of the Lower House.

Such non-response engenders the presumption that none is "by virtue of his own act under acknowledgement of allegiance, obedience or adherence to a foreign Power or State" - Section 40 (2) (a)".

It is open to public debate that this presumption is eminently rebuttable and can only be upheld by the Senators themselves coming out of the citizenship closet and declaring openly their status.

The situation is further compounded by the presence of numerous Attorneys-at-Law, Ministers of Justice, Attorneys-General and at least four Queens Counsel (QC) amongst this non-elected Upper House. The fact that those who nominated them were unmindful of the constitutional requirements cannot provide refuge in light of the publicity surrounding the dual citizenship saga in the elected Lower House.

The members of the Senate have no interest in the outcome of an appeal dealing ostensibly with the effectiveness of disqualification notices and electoral consequences. They need not await any court rulings or talks aimed at collective confessions. The Attorney-General should take the lead and the Opposition spokesman on Constitutional Affairs - himself a former Minister of Justice and Attorney General - could not restrain himself.

This is an opportunity to dispel popular notions that the Senate merely acts as a rubber stamp of the intentions of those below. The Senate can no longer remain sedated by electoral considerations. Integrity in public life demands no less.