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.


Anonymous said...

I find it hard to understand why Mr Rowe who has Canadian citizenship is up to contest the by-election.

Anonymous said...

With all the brouhaha surrounding the dual citizenship, has anyone try to determine the outcome if a sitting Jamaican parliamentarian "with dual citizenship' is called to bear arms?. Is there tenets made in the Constitution for this.

John said...

The part you highlighted in bold is quite incorrect on Seaga's part. For a long while I have felt he has been going a touch senile and this seems to be one of those moments. The idea that "every other country is a foreign state in the Jamaican Constitution" is clearly Seaga's bias and not supported by the constitution itself and there are two points to support this:

1. In Clause 12 (Chapter II), Section (1) it states " 'foreign country' means a country (other than the Republic of Ireland) that is not a part of the Commonwealth;"

2. As your blog has pointed out the Constitution has to be internally consistent and that has to be the primary interpretation even above and beyond the "founders' intent" (especially since when Seaga wrote this he was writing after years of his own isolationism and over 40 years since the constitution was written). How can the constitution be internally consistent if it considers "every other country to be a foreign state" while at the same time allowing Commonwealth citizens who are permanent residents, but not citizens of Jamaica to "be qualified to be appointed as a Senator or elected as a member of the House of Representatives" (Clause 39, Chapter V, Part 1) and still be in compliance with the Clause 40 (the one immediately following!), Section 2, subsection a which states "No person shall be qualified to be appointed as a Senator or elected as a member of the House of Representatives, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign Power or State"?

Surely then it would bar all Commonwealth citizens who aren't citizens of Jamaica (since as citizens of any "other country" they would have allegiance to a foreign power or state) and Clause 39 would make no sense.

Quite the contrary the Constitution makes a distinction between "Foreign" (all countries outside the Commonwealth other than the Republic of Ireland) and "Commonwealth" (which is interpreted to mean all countries in the Commonwealth as well as the Republic of Ireland).