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)