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Although the above has been repealed (Act 16 of 1999 sec 6), it provides a useful guide to the application of the disqualification provision in Section 40 (2)(A).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”.

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