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.

2 comments:

Anonymous said...

It seems to me that the designation "Foreign power or State" could not be applicable to Commonwealth citizens in this debate in so far as we all share the same Head of State. However if Jamaica becomes a Republic then any State other than Jamaica would be legitimately deemed foreign.

Anonymous said...

Ignorance of the Law is no excuse!!!