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.

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