Saturday, July 11, 2009

By-Election Predisposition

Introduction

A massive amount of time and resources have been devoted to the issue of the course to be properly taken once a victorious electoral candidate has been found to be "disqualified" under S. 40 of the Constitution of Jamaica.

Simply put, the crux of the matter is whether the second place candidate should, without more, be accorded the seat by the court; or that the said election be deemed null and void and a by-election ordered to decide the people's representative. This matter consumed inordinate amounts of energy - judicial and otherwise - due primarily to the silence of the Constitution on what recourse should be adopted in such circumstance.

A cardinal tenet of democratic government is that the people must decide their representatives and not a select grouping - no matter their qualification or status.

The Constitution of Jamaica fully recognized this imperative even though it expressly delegates the determination of questions as to membership of either House to the Supreme Court, or on appeal to the Court of Appeal. Such questions relate to (a) the validity of those so elected or appointed and/or (b) the member vacating his seat or ceasing to exercise any of his functions as a member [S.44(1)]

A Matter of Parity

The Constitution of Jamaica expressly declares the dilution or diversion of loyalty to Jamaica as offensive to the extent that such actions "disqualifies" a candidate for election as a member of the House of Representatives or appointment to the Senate. Furthermore, once a sitting member embarks on such offensive behaviour, a court can determine that his seat be declared "vacant". [S. 41(1)(d)(e)]

Interestingly, the Constitution of Jamaica treats such offensive behaviour by a sitting member more seriously than mere candidates to be elected or selectees to be appointed to wit:

41. (1) “The seat of a member of either House shall become vacant …………….

(d) if he ceases to be a Commonwealth citizen or takes any oath or makes any declaration or acknowledgement of allegiance, obedience or adherence to any foreign Power or State, or does, concurs, in or adopts any act done with the intention that he shall become a subject citizen of any foreign Power or State.” [emphasis added]

(e) if any circumstances arise that, if he were not a member of the House, would cause him to be disqualified for appointment or election as such by virtue of paragraph (b) or (g) of subsection (2) of section (40) of this Constitution.


At present, there are no penalties or restrictions to be imposed on the offending member if he purges himself to either be re-appointed or to contest the by-election. The recourse for the "more serious" offence is the seat being declared "vacant" and a by-election held. Albeit unstated, the "less serious" offence cannot attract a more serious recourse.

It is here contended that the Constitution of Jamaica is not predisposed to accord the seat to the losing candidate (or the second placed) if the winning candidate is declared "disqualified" ;or the sitting member's seat in the Lower House is declared "vacant" by reason of the said offending behaviour.

Concluding Comments

It is a pity that more focus was not attuned to the wording and implications of the provisions of the Constitution of Jamaica. Too often there is an over-reliance on deliberations of other courts from foreign jurisdications with a slavish intent of following the precendents set by others who (by nothing more than belief) are deemed to be wiser.

Sadly, the judgement of the Court of Appeal on this matter does not reflect any new thinking or instructive reasoning. It will not be of any moment in the development of so-called "Caribbean jurisprudence".

Sunday, June 28, 2009

Intent of the Framers

It has become blasé to buttress one's position on any interpretation of the Constitution of Jamaica with the hallowed but hackneyed phrase "the intent of the framers". Perhaps the best way to clarify any ambiguity arising in the interpretation of the actual words and phrases employed in the document is to consult the said framers who are still alive, or their memoirs, personal notes, or interviews if the framers are no longer available.

As regards the "dual citizenship" vis-a-vis membership in either house, we have referred to the intervention of at least one of the framers - the Most Honourable Edward Seaga. Such a source may prove politically inconvenient to some, but in the absence of public interventions from a more politically convenient source, we are forced to accept Seaga's clarification.

Another method of ascertaining the "intent of the framers" of the Constitution of Jamaica rests with the application of one the cardinal principles of interpretation of any constitution - internal consistency. The various provisions of such a document must be interpreted in such a manner as to effect harmony and internal consistency of the entire document. The provisions of the Constitution, being itself the Supreme Law, cannot be in conflict with each other for the Constitution itself declares any law found to be inconsistent with the said Constitution to be null and void.

Interestingly the Constitution of Jamaica once contained a section, as discussed before, dealing with "Deprivation of citizenship on acquisition or exercise of rights of another citizenship".

8. (1) If the Governor ­General is satisfied that any citizen of Jamaica has at any time after the fifth day of August 1962 acquired by registration, naturalization or other voluntary and formal act (other than marriage) the citizenship of any country other than Jamaica, the Governor General may by order deprive that person of his citizenship.

(2) If the Governor General is satisfied that any citizen of Jamaica has at any time after the fifth day of August 1962 voluntarily claimed and exercised in a country other than Jamaica any rights available to him under the law of that country, being rights accorded exclusively to its citizens, the Governor ­General may by order deprive that person of his citizenship.

It is untenable to interpret or conclude that the Constitution of Jamaica does not bar its citizens possessing any number of additional Commonwealth citizenship from citizenship from sitting in either house (as Panton P. has done) when the very same Constitution specifically authorizes the depriving of that individual of his Jamaican citizenship on the grounds that he has "voluntarily claimed and exercised in a country other than Jamaica any rights available to him under the law of that country, being rights accorded exclusively to its citizens".

The operative phrase is "a country other than Jamaica". Those who adhere to the view that the phrase "foreign Power or State" utilized in Disqualification and Vacancy provisions for membership of the Senate or House of Representatives [Sec.40(2)(a)], [Sec. 41(1)(d) exempts Commonwealth states face an insurmountable hurdle.

It cannot be that the Constitution of Jamaica at one and the same time does not bar a Jamaican citizen who has acquired citizenship in any number of Commonwealth states from being elected to sit in the House of Representatives or appointed to the Senate, but contemplates the deprivation of his Jamaican citizenship precisely on those very same grounds. Moreover it cannot be argued that the phrase "a country other than Jamaica" fails to capture Commonwealth countries.

Admittedly S. 8 has been amended subsequently. Nevertheless, reference is highlighted in an attempt to discern the "intent of the framers" at a particular point in time. Perhaps today's framers will have a different intent. Whatever the intent the interpretation of the provisions of the Constitution must be internally consistent.

Saturday, June 27, 2009

Missed Opportunity - Commonwealth Citizenship

The Court of Appeal did not address the interpretation of the phrase "foreign Power or State" in S.40(2)(a) of the Constitution of Jamaica. This was a missed opportunity since the interpretation to be accorded to the said phrase is central to any discussion of "dual citizenship" in the Jamaican polity.

This omission may be justified by the fact that the issue was not raisd before the Court in the Dabdoub/Vaz appeals as it was fully recognized that the USA was a "foreign Power or State."

The issue not being properly before the Court, the matter should have been avoided. Indeed it is only Smith J.A. who did not venture an opinion on divided loyalty as regards membership in the House of Representatives.

Panton P. :

35. "The framers of the constitution clearly intended that Jamaicans who by their own act sought and received non-Commonwealth citizenship, or having not so sought it, nevertheless voluntarily acknowledged allegiance to such countries, should not sit in the House of Representatives. It does not matter that they were born in Jamaica. It is a notorious fact that over the years many Jamaicans have acquired foreign citizenship, and many others are constantly in the process of seeking such status. If they choose a distant autocratic, unfriendly Commonwealth country for citizenship status, they can still serve in the House of Representatives." (page 25)

Panton P. offered no analysis of the relevant provisions of the Constitution of Jamaica dealing with Commonwealth citizenship and/or loyalty,obedience and allegiance. The matter was not canvassed before the court and the learned President failed to put forward any jurisprudential reasoning, legal precedent or even historical factors to support such a position. Probably at best this is merely a belief held by the learned President best expressed at social gatherings rather than in a Court of Appeal judgement from which there is no appeal.

Closer examination of this expressed opinion reveals legal imprecision. The offence is not confined to those "who by their own act sought and received non-commonwealth citizenship". It also applies to a sitting Member who "does, concurs in or adopts any act done with the intention that he shall become a subject or citizen of any foreign Power or State" [Sec. 41(1)(d)] Hence if a Jamaican member of the House of Representatives seeks non-Commonwealth citizenship, whether or not he is successful, he is disqualified from sitting.

Furthermore, Panton P. has excluded himself from adjudicating on any future challenge involving a Jamaican prospective or sitting member obtaining citizenship in other Commonwealth countries.

"If they choose a distant autocratic, unfriendly Commonwealth country for citizenship status, they can still serve in the House of Representatives."(page 25)

Is this a correct interpretation of the provisions of the Constitution of Jamaica? Is this what the "framers of the constitution intended"? Does this accord with the reasonable inferences to be drawn from the judgement of Chief Justice Zalia McCalla in the said matter below at first instance? Is the learned President wrong in both law and fact?

Indeed it appears that the learned President is alone ;for whereas Smith J.A. rightly remained silent on an issue which was not before the court, Harrison J.A. felt moved to disagree - albeit with the similar shortcomings of the learned President's obiter dicta.

"It was and still is the intent of the framers of the Constitution that only persons who have undivided loyalty to Jamaica should be elected to Parliament or appointed to the Senate." (page 74)

Thursday, March 19, 2009

Ask the Framers

A lot of time and energy have been devoted to what has been loosely called the "DUAL CITIZENSHIP DEBATE". Much interest has been accorded to the status of Jamaican citizens who have voluntarily acquired citizenship status of other Commonwealth states. More specifically, are such persons disqualified under Section 40 .2 (a) of the Constitution of Jamaica from either being elected as Members of Parliament, or appointed to the Senate?

There are a number of ways to ascertain the true intention of the framers of the Constitution of Jamaica. The first is quite evident: read the words used in the section and employ a literal meaning. In case of some ambiguity, resort can be had to how similar sections and phrases used have been interpreted in other Commonwealth jurisdictions in the event that courts in Jamaica have not clarified the situation. However, there remains another avenue: ask the framers if they are still around, or consult their writings on the subject if such is available.

We in Jamaica are fortunate. Still in our midst are two such persons who were intimately involved in the process. One is reported to be The Most Honourable Edward Seaga--a former Prime Minister, the other Mr. David Coore Q.C.--a former Minister of government. Both were Members elected to the Lower House. Mr. Seaga has sought to contribute to this debate. Given the handing down of the Court of Appeal's written reasons for upholding the Chief Justice's ruling, it is appropriate to highlight this insightful analysis.

Loyalty to Country published in the Jamaica Gleaner: Sunday August 19, 2007

Edward Seaga, Contributor

A good deal of public interest has been aroused about the question of citizenship and loyalty.

Many people who are residents of Jamaica have their roots in a foreign country where they were born. They love Jamaica but their loyalty is to the country of their birth.

Many others find themselves in the opposite set of circumstances: they were born in Jamaica but have migrated to another country where they have taken up citizenship. But they still remain loyal to Jamaica.

Still others are born here, have their residence in Jamaica but have become citizens of another country.

most migratory people

It is not surprising that these variations exist. Jamaicans are among the most migratory people in the world. Any country which has as many of its people living abroad as at home, as Jamaica does, must have the distinction of being world migrants.

Modern constitutions allow for these multiple linkages. Hence, it is possible to have citizenship of more than one country, mostly dual citizenship. In many countries it is possible to hold more than one passpor generally, the authorities frown on this. A good many Jamaicans in the diaspora probably fall into this category. They enjoy the best of both worlds, holding both a Jamaican passport and the passport of another country.

Dual citizenship

Dual citizenship allows privileges in both countries. These privileges are broad enough to allow a dual citizen to enjoy educational benefits in one country and health benefits in another. In some cases, a dual citizen can vote in both their country of residence andcountry of birth. But one thing a dual citizen is very unlikely to do is to hold passports in both countries and become an elected or appointed Member of Parliament. This is where the factor of allegiance to the country, or loyalty, arises. A government must be certain about the loyalty of its citizens. A citizen who is disloyal can face serious penalties, including treason, depending on how far the disloyalty is taken.

Government safeguard

The Government of Jamaica provides this safeguard in the Constitution. A Jamaican citizen who has fulfilled the requirement of citizenship of another country, taking an oath of allegiance, or obtaining a passport to certify identity, cannot be constitutionally elected or appointed to a seat in the Jamaican Government because one person cannot hold allegiance to two flags.

The Constitution of Jamaica, in Section 40 (2) sets out clearly that:

"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 acknowledgement of allegiance, obedience, or adherence to a foreign power or state."

This provision of the Constitution has several important consequences:

(i) "Any person seeking election or accepting appointment to the Jamaican Parliament who is a citizen of another country can be disqualified."

But persons born in a foreign state are not disqualified by virtue of origin of birth alone, since they would not be responsible for their place of birth, unless they performed an act to demonstrate their allegiance to another country. Such an act includes obtaining a passport. This is to ensure that no penalty is applied on the basis of birth alone.

(ii) Disqualification is not automatic. The sanctions for a breach have to be declared in a court of law as a result of a petition brought before the court by a person who has sufficient cause. Hence, in an election, if the successful candidate is a citizen of another country and holds a passport of that country, thena petition from persons in the constituency can result in the winner losing his or her seat.

In such a case, the court would order a by-election to run the seat again, at which time the candidate with a foreign passport would have a chance to renounce his foreign citizenship before the by-election in order to successfully contest the seat in accordance with the Constitution.

(iii) It is popularly believed that this provision of the Constitution does not apply to Commonwealth countries. This is not true. Every other country is a foreign state in the Jamaican Constitution. Hence, the disqualification applies to Canada, the United Kingdom, Nicaragua, Bahamas, and all others. A Jamaican holding a Trinidadian, Grenadian or other passport would be liable to disqualification if they contested a Jamaican election.[emphasis added]

This provision of the constitution would prevent any member of the diaspora from accepting appointment to the Senate unless they renounced their foreign citizenship - an unlikely act.

I understand that possibly one dozen candidates currently campaigning for seats in the August 27 general election have found themselves with this problem. If they are successful in winning their seats they could face a decision of the court which could overturn the electoral decisions, leaving them to face by-elections. This could keep the final outcome of the election in suspense for months, if there was a narrow win.

Problems of dual citizenship

I faced the problems of dual citizenship because of my birth in the United States, over which I had no control. I voluntarily renounced my American citizenship in 1959. I did not have to. I could have retained it and still become a member of the Jamaican Government by simply not obtaining an American passport, or performing any act of allegiance to the United States. But I did not go part-way. I decided to remain a Jamaican only at the expense of surrendering my American citizenship, making me undisputedly a citizen of Jamaica and Jamaica only.

These decisions are hard to make and preferences are usually personal, but preferences for parliamentarians should be directed to country, not to self, for anyone to be worthy of representing their country with integrity.

I trust that those persons who get a second chance to renounce their foreign citizenship to qualify as a candidate will do the right thing.

Tuesday, March 17, 2009

The Chief Justice's Ruling - Dabdoub v Vaz

The Court of Appeal has handed down its written reasons for upholding the ruling of the Chief Justice.In order to fully appreciate the reasoning, it is prudent to place such in the context of the deliberations before the Supreme Court. The Chief Justice goes into detail the arguments that were pertinent to her decisions.

As is the pattern, such is posted without any comment.

For what it is worth, my comments have been posted in earlier blogs: notably Beyond McCalla and Lessons for Parliamentarians.

Dabdoub v Vaz[1]

Monday, March 16, 2009

New Nomination Paper Needed

Given the handing down of the written judgement by the Court of Appeal , the pending by-election and the real possibility of a number of such by-elections due care should be taken to ensure that the costly mistakes are not repeated by feigned ignorance of the disqualification provisions contained in the Constitution of Jamaica.Accordingly, we take this opportunity to post a publication made in the Gleaner sometime ago:

New Nomination Paper needed for elections published: Tuesday May 6, 2008

The Editor, Sir:

Elections - general or a series of by-elections - are in the air. Political parties have begun a not-so-subtle propaganda campaign in the mass media. The issue of a person not being qualified to be nominated and the public awareness of the possible disqualifications have come to the fore via the ruling of McCalla, CJ, in the Dabdoub v Vaz et al.

The current Nomination Paper only focuses on the basic qualification in Section 39 of the Constitution of Jamaica without stating the requirement. This presumes that the nominating electors are either acquainted with the Section or walk with the Constitution when the form is being completed. Both presumptions are on very fluid grounds. There is nothing on the form in use to alert the nominating electors or the nominee to the specified disqualifications contained in Section 40.


Implementing measures


In an attempt to prevent a recurrence of "confusion in the minds" of the electorate, it may be wise to implement measures aimed at raising the awareness of prospective nominees, the persons nominating the candidate and the constituents.

One such measure could be an affirmation to be completed by the prospective candidate and witnessed by the returning officer. The form would contain a listing of all the conditions which would cause a candidate to be disqualified from being duly nominated [Section 40 (2) Constitution of Jamaica]. To wit:

  • A citizen of any other country except Jamaica

  • Under 21 years of age

  • Certified insane

  • Declared a bankrupt in a Commonwealth state and such bankruptcy has not been discharged

  • Serving a sentence exceeding six months or such sentence is suspended

  • Convicted of any offence connected with elections - local or general.
Certified copies of the duly executed nomination paper should be prominently displayed in a number of appropriate public spaces in the constituency, such as the local electoral office, polling stations, post office and any other locale where the list of registered electors in the constituency is made available.

False declarations would occasion a financial penalty being imposed upon conviction in a Resident Magistrate's Court and the subsequent prohibition from being a candidate in any election - general or local.


I am, etc.,


Dr PAUL ASHLEY
Attorney-at-Law

Friday, March 13, 2009

Judgement Delivered - Court of Appeal

In the interest of widespread dissemination of a much-awaited judgment, we have facilitated easy access to the document. We do so without comment; so that you will not be influenced in arriving at your own conclusions.

Our analysis will be conveyed in another post. In the meanwhile, read the judgement in the context of the submissions made before the court. These have been posted earlier; so just scroll down and use the inset.



Thursday, March 12, 2009

A Past but Useful Guide

There is a raging debate over the constitutional position of a Jamaican citizen who has acquired the citizenship status of another Commonwealth state and his eligibility to sit in Parliament. In short, whether Section 40. (2) (a) captures such an individual—commonly referred to as a “Commonwealth dual citizen”.

We have submitted on numerous occassions that such an individual is disqualified from being duly nominated for election (House of Representatives); disqualified from being duly appointed (Senate); and should such a status be achieved after being seated in Parliament, then that seat shall become vacant.

An historical examination of the development of the Constitution of Jamaica since Independence reveals in very clear and precise terms how the matter of Jamaican citizenship was to be treated in cases where another citizenship status was acquired by a Jamaican citizen.

Section 8, side-captioned “Deprivation of citizenship on acquisition or exercise of rights of another country” stated:



8. (1) If the Governor ­General is satisfied that any citizen of Jamaica has at any time after the fifth day of August 1962 acquired by registration, naturalization or other voluntary and formal act (other than marriage) the citizenship of any country other than Jamaica, the Governor General may by order deprive that person of his citizenship.


(2) If the Governor General is satisfied that any citizen of Jamaica has at any time after the fifth day of August 1962 voluntarily claimed and exercised in a country other than Jamaica any rights available to him under the law of that country, being rights accorded exclusively to its citizens, the Governor ­General may by order deprive that person of his citizenship.



Although the above has been repealed (Act 16 of 1999 sec 6), it provides a useful guide to the application of the disqualification provision in Section 40 (2)(A). It is submitted that the interpretation of the various sections of any Constitution must be internally consistent. In other words, a given set of circumstances cannot at the same time provide a basis for the deprivation of Jamaican citizenship and not disqualify that individual from sitting in Parliament.

Source:Jamaica Observer 12.3.09
A great deal of time and energy could have been saved if some guidance was sought as to how the Constitution of Jamaica over time treated the matter of Jamaican citizenship. The language is clear and precise leaving no room for exotic interpretations or legalese.

At the risk of being annoyingly repititous: any Jamaican citizen who voluntarily acquires or exercises the citizen status or exclusive rights of any country other than Jamaica is disqualified.

The operative date is Nomination Day for those seeking election to the House of Representatives and the date of appointment for those selected for the Senate (Sec 39).

Regrettably, this public debate runs the risk of being an exercise in futility as it has dire consequences for the composition of Parliament. Note, that even US green card holders are disqualified under this interpretative guide. Political expediency trumps the Rule of Law with increasing frequency in ex-colonial territories. History is replete with politicians employing the subterfuge of awaitng the judicial outcomes of individual cases and seeking the refuge of a “Select Parliamentary Committee”. These are safe havens for the disqualified sitting in exalted positions, sworn to uphold the very Constitution that they themselves knowingly continue to subvert.

And we wonder why we are called “Third World”.

Wednesday, March 4, 2009

A PENDING PAPPYSHOW

Source:Jamaica Observer 4.3.09
Having addressed this matter repeatedly, it now seems almost bizarre for the People's National Party (PNP) to have announced the selection of a person holding dual citizenship to contest the up-coming by-election in the West Portland constituency. This is against the background of a prolonged and continuing litigation involving the Constitution of Jamaica and the dis-qualification of sitting Members of the governing Jamaica Labour Party (JLP). Given the decision of the Court of Appeal - the final arbiter in Election Petition matters - which upheld the Chief Justice’s ruling and dismissed all the appeals, it is indeed less than prudent to open a potential avenue of legal contention to nominate one who is the holder of a Canadian passport.

The impression is being openly propagated by some Attorneys and the mass media that the holders of passports from Commonwealth states are not disqualified from being duly nominated; or if a sitting Member, for that seat to be declared vacant. In particular, that Jamaican citizens who have acquired citizenship status in other Commonwealth states are not affected by the Disqualification provision contained in Section 40(2) (a) to wit:


(2) No person shall be qualified to 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;”
Reliance is placed on the speific wording utilized in the Qualification provision in Section 39:


“ 39. Subject to the provisions of section 40 of this Constitution, any person, who at the date of his appointment or nomination for election -

(a) is a Commonwealth citizen of the age of twenty –one years or upwards; and

(b) has been ordinarily resident in Jamaica for the immediately twelve months,

shall be qualified to be appointed as a Senator or elected as a member of the House of Representatives and no other person shall be so qualified.
It should be noted that this provision speaks only of “Commonwealth citizen” and does not mention “Jamaican citizen”. Interestingly, the Constitution in section 9 defines Commonwealth citizens:


“9.-(1) Every person who under this Constitution or any Act of Parliament is a citizen of Jamaica or under any enactment for the time being in force in any contry to which this section applies is a citizen of that country shall, by virtue of that citizenship, have the status of a Commonwealth citizen.”

Sub-sections (2) & (3) list some countries mainly those of the British Empire


Logical Applications:

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).

From a reading of sections 9 (1), 39, 40 (2) (a) it is reasonable to conclude that a Jamaican citizen is treated no different from any other Commonwealth citizen. Thus, any Commonwealth citizen can be disqualified under section 40 (2) (a) and it matters not if he is a Jamaican, Indian or Barbadian adult who has lived in Jamaica for the immediately preceding twelve months.

Applying the Ruling

Chief Justice McCalla has ruled that the renewal of and travel on a US passport by an adult Jamaican are indicative of “acknowledgement of allegiance, obedience or adherence to a foreign Power or State” as outlined in Section 40 (2) of the Constitution of Jamaica. Consequently, such disqualified the individual from being duly nominated as a candidate for elections to the Parliament.

Section 39 contains similar wording. Applying McCalla’s ruling such also disqualified an individual from being appointed to the Senate.

Another application relates to a seat of a sitting member becoming vacant - Section 41(d). Hence if the member acquired a US passport - irrespective of whether or not he uses it - after assuming the relevant position in the House, the seat shall be declared vacant.

The situation is quite straightforward where, as an adult, the individual indulges in any act which may be indicative of channeling allegiance to another state (except Jamaica).

According to McCalla, the individual may have dual citizenship and be qualified; but once he activates that other citizenship after activation of his Jamaican citizenship then he is disqualified. In other words, if the other citizenship remains dormant – not acknowledged by acts done by the individual – then that Jamaican is not offending Section 40 (2) of the Constitution.

Going Beyond

The court was not asked to interpret the phrase “foreign Power or State”; nor was it concerned with citizenship of other states, especially the Commonwealth. It has been contended by legal pundits that the situation would have been fundamentally different if the respondent was the holder of a British, Canadian or Barbadian passport.

In the absence of supporting legal precedent some have resorted to belief. Others to the one- family proposition and a few to the basic qualification of being a Commonwealth citizen Section 39(a) and cessation in Section 41(d) of the Constitution.

Some proponents of the view that Commonwealth states are not included in the term “foreign Power or State” seek to advance the following:

Chapter II of the Constitution of Jamaica deals with Citizenship.

Section 12 gives the following interpretation:

“Foreign country” means a country (other than the Republic of Ireland) that is not part of the Commonwealth;

Hence, the term “foreign Power or State” should be construed in accordance with that of “foreign country.”

As mentioned before, the proponents have yet to produce any judicial interpretation to substantiate their position. Moreover, it may be convenient to ignore that the section being relied upon begins “In this Chapter – “. The interpretations are specific to Chapter II;

(b) “foreign country” is not necessarily synonymous with “foreign State or Power.”

In relation to those holding Canadian, British or even Barbadian citizenship in addition to their Jamaican citizenship, it is being argued that they have sworn allegiance to the same sovereign power – Her Majesty. Hence these Commonwealth countries with Her Majesty as Head of State cannot be classified as “foreign.”

Source:Jamaica Observer 11.3.09
The argument – although comforting to the holders of such citizenship – fails to surmount a basic constitutional reality. With regard to legislative and governmental matters, the Head of State of say Jamaica is the Queen of Jamaica; the Head of State of Australia is the Queen of Australia; the Head of State of Canada is the Queen of Canada. Her Majesty occupies a number of distinct legal personalities and each in its exercise of its sovereignty has no legal consequences for the other. For example, for Jamaica the United Kingdom would be classified as “a foreign power”, so too would Canada and Barbados. Furthermore each of these sovereign states has its own rules in respect of nationality and their citizens owe different allegiances.



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

The real mischief that the Constitutional provisions seek to prevent is any dilution, division or dispersion of the allegiance to Jamaica by persons serving in the House of Representatives. Accordingly, once Jamaican citizenship is attained/obtained/activated, then allegiance and the acknowledgment thereof to any other nation-state is forbidden in respect of the Legislature. However, having obtained additional citizenships, then appropriate and timely renunciation- leaving Jamaican citizenship as the sole allegiance- satisfies the particular Constitutional provisions.

The above represents in the main a legalistic position and there is an imminent bi-election. How ironic it is that this was occasioned by the dual citizenship of a former contender who has since removed the offending impediment only to be confronted with one who has dual citizenship- not of the USA but Canada.But this pales into political insignificance if the dual citizen losses; but assumes mammoth legal significance if he wins.

The Electoral Office Of Jamaica has estimated the cost of the by-election to be JA$4o million---to be borne by the taxpayers. The adjudged “disqualified” bears none of that cost directly.There is a distinct possibility that the legal ritual may be repeated, if measures are not in place to prevent a recurrence. Political parties and the individuals who propose the candidate for nomination must be made accountable for their negligence. These individuals must not be given a second chance at taxpayers’ expense.

If those so adjudged were fined substantial sums and barred from entering electoral contests or holding political office, then it is likely that individuals and the political parties would pay due regard to the Constitution and those offending members may think it prudent not to abuse the process of the court in order to maintain their de facto position.

Sunday, March 1, 2009

The Coat of Surreal: Not Ready

On Friday, February 27. 2009, the Court of Appeal announced it's decision in the Dabdoub v. Vaz appeals devoid of a written reasoned judgement.

Politically, the notion of the people deciding who shall represent them in Parliament, is incontestable. The mobilization of the political party's electoral machinery has untold beneficial effects for constitutents as it is at election time that politicians are forced to "pay" special attention to the needs of the people.

Legally, there are a number of serious concerns:
  • We have a Constitution and have accepted the notion of the Rule of Law;
  • The courts are the enforcers of the Constitution and the Rule of Law;
  • The courts' decisions must reflect this unique mandate and be open to public scrutiny;
Obviously, the Court of Appeal was not ready to hand down a written reasoned judgement. The unavoidable question is:

What factors determined this announcement at this time?

For a matter dealing with the Constitution of Jamaica (the supreme law of the land) and the Composition of Parliament -which could have devastating implications for the government -to have taken so long (approximately 18 months) is totally unacceptable.

For the judges of the Court of Appeal (the final arbiter in such election petition matters) to announce a decision which has implications for other pending cases without written reasoning is inexcusable.

We humbly submit that this is not a complex matter necessitating countless hours of cerebral exertion. Both sides presented copious arguments and researched the gamut of case authorities. Moreover, the Chief Justice had handed down a written, reasoned judgement - a judgement which the Court of Appeal upheld.

To come now and just announce the dismissal of the appeals and the upholding of the Chief Justice's ruling is:
  • woefully insufficient;
  • unworthy of a learned tribunal;
  • further accelerates the erosion of public confidence in the judiciary;
  • adds substance to the case for the retention of the Privy Council.
To promise delivery of the reasons in writing within two weeks adds further insult to the contemptuous in jury. Why not wait two weeks before making any announcement and deliver the much-awaited reasoning? What difference would 14 more days make to a process that to date has exceeded 510? Did political considerations influence the timing of this announcement?

Small societies are especially vulnerable to rumours, allegations wild speculations and suss. Court decisions that have far reaching political consequences are always open to charges of political interference, undue influence, discussions of the percieved political loyalties of the judges concerned and a formidable grist for the mill of conspiracy theorists. Regrettably the Court of Appeal on this occasion seemed oblivious to this reality. It did itself an injustice.

With due respect.

Friday, February 27, 2009

Dabdoub's Indian Case

Abe Dabdoub and his esteemed legal team have brought to the fore a wide array of case authorities to support their position.

Below is a case which was not cited in the original submissions before the Court of Appeal but was unearthed subsequently. It is interesting since it emanates from a Commonwealth jurisdiction.


Per Shah J.
"We are again unable to see any logic in the assumption that votes cast in favour of a person who is regarded by the Returning Officer as validly nominated, but who is in truth disqualified, could still be treated as valid votes."

Konappa Rudrappa Nadgouda v _indian Case