Sunday, December 14, 2008

Responding to Disqualification Appeal

As noted previously Daboudb's submissions are interrelated and intertwined. In responding to Vaz' appeal of the Chief Justice's ruling, Dabdoub submits inter alia:

  • The Respondent Dabdoub being the only candidate qualified to be elected and the only candidate who was duly nominated, is as a matter of law and by operation of the Representation of the People Act and the Constitution of Jamaica to be returned as the duly elected Member to the House of Representatives.
  • Dabdoub, having served Notice of and the facts giving rise to Vaz' disqualification be so notorious and known to the electors that the Respondent should as a matter of law be returned to the House of Representatives.
  • Having regard to the Chief Justice's own interpretation of S.40(2)(a) of the Jamaican Constitution, it is submitted that the Notice of Disqualification met the legal requirements of stating the facts which gave rise to the Appellants Disqualification.
  • It is submitted that the words used in S.40(2)(a) of the Constitution itself clearly denotes that the candidate's qualification is based on his status not of offence or misconduct.
The detailed submissions are set out below:


Responding to By-Election Appeal

The response to Dabdoub's appeal against the Chief Justice's order for a by-election is centred around three main submissions.
  • The concept of "votes thrown away" in relation to Parliamentary Elections being a doctrine reated under the English system of law is incompatible with the nature and structure of the Constitution of Jamaica. Furthermore, the concept of votes thrown away is unconstitutional.
  • The express language of S.40(2)(a) of the Constitution of Jamaica requires a finding that the individual has conducted himself in doing some action which acknowledges allegiance, obedience or adherence to a Foreign Power or State.
  • The facts in the Notice of Disqualification were unclear, indefinite and uncertain.
The detailed submissions are set out below:



Saturday, December 13, 2008

Appealing the By-Election Order

Abraham Dabdoub's appeal against the Chief Justice's ruling can be divided into two overlapping and intertwined phases:

  1. That the Chief Justice erred in law by failing to award the seat to the only duly nominated candidate on Nomination Day, August 7, 2007 in the constituency of West Portland; and
  2. That the Chief Justice erred in law by failing to recognize and properly apply the distinction between "status" and "conduct" in coming to her decision on disqualification based on dual citizenship.
Numerous cases on votes being declared to be "thrown away" and the next candidate being duly seated by the court are cited.

The detailed submissions are set out below:




Appealing Dual Citizenship Qualification

Daryl Vaz has appealed the Chief Justice's ruling that:

  1. On Nomination Day, August 7, 2007, he was not qualified to be elected to the House of Representatives for the constituency of West Portland;
  2. Vaz' nomination on that day in invalid, null and void and of no legal effect. Hence he was not duly returned or elected as a Member of the House of Representatives.
In sum the Chief Justice found that Vaz at the time of his nomination was in breach of S.40(2) (a) of the Constitution of Jamaica, viz:
"No person shall be qualified to be appointed as a Senator or elected as a member of the House of Representatives who - (a) is by virtue of his own act under any acknowledgment of allegiance, obedience or adherence to a Foreign Power or State"

Vaz' appeal against the disqualification based on his dual citizenship is centred around:

  • The Chief Justice failed to give effect to the plain meaning of the words of S.40(2)(a);
  • The disqualification does not apply to dual nationals who acquire citizenship involuntarily;
  • Expressio unius exclusio alterius;
  • In any event acquisition and travelling on a passport did not amount to acknowledgment of allegiance.
The detailed submissions are set out below:

Awaiting Judgement

The arguments are in; they now await judgement of the Court of Appeal - the final arbiter in matters involving the Election Petition Act.

The judgement of the Court of Appeal will be decisive as it will affect the fate of a number of the sitting members of the House of Representatives as well as those appointed to the Senate. The most profound effect could be the calling of a series of by-elections or a general election - depending on the ruling of the court.

The judgement is expected in early 2009 - in excess of 1 1/2 years since the new Parliament was convened. That cannot be a satisfactory situation where the very composition of the said Parliament is being questioned. The matters in issue involve the interpretation of provisions of the Constitution of Jamaica - ostensibly the supreme court of the land. Dependent on the nature of the ruling, it could be inferred that there has been either a conspiracy to subvert the constitution or a sacrifice of the constitution on the altar of political expediency.

The Context

After the Chief Justice handed down her findings a number of events were set in motion. Dabdoub announced that he intended to appeal the aspect of the judgement which declared that a by-election should be held instead of him being awarded the seat. Vaz initially had no problems with the Chief Justice's ruling, declared his intention to renounce his US citizenship and called for the said by-election to be held at the earliest possible date.

Then things got a bit complicated.Vaz announced his intention to file an appeal against the finding of the Chief Justice that his dual citizenship had disqualified him from being duly nominated. This was done as a so called "strategic move" - ostensibly to ensure that he remained in Parliament until the appeal was decided. Vaz subsequently renounced his US citizenship, issued repeated calls for Dabdoub to withdraw his appeal and proceed forthwith to the by-election.

Dabdoub stood firm, working the image of the protector/guardian of the Constitution of Jamaica to counter the political propaganda that he could only win the seat by court action not by an election.

The political situation became even more complex as the opposition People's National Party launched a number of legal challenges (seemingly spearheaded by Dabdoub himself) on a number of Government members centred around their alleged dual citizenship.

Enter Prime Minister Bruce Golding. His stance is that he would not allow anyone to sit in Parliament who was not elected by the people- ie. who gained the seat as a result of court adjudication.

The Submissions

The submissions of Dabdoub and Vaz are public documents; however the matters are under consideration by a court of law and as such the sub judice rule applies. In the interest of public awareness - especially those with vested interest - we intend to facilitate widespread access to those submissions. We do so without any comment on the merits of the cases.