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)

1 comment:

John said...

Panton P. makes reference to a "a distant autocratic, unfriendly Commonwealth country" but I doubt he could cite a single example of such. The whole point about Commonwealth countries is that they are democratic and relatively friendly to each other (the only exception has been India and Pakistan towards one another). Since we aren't India nor are we Pakistan I don't see which "unfriendly" Commonwealth country Panton P. could possibly be thinking of and undemocratic countries are usually suspended and even expelled from the Commonwealth (see Pakistan, Fiji, Nigeria, Zimbabwe....). This sounds more like Panton P.'s (uninformed) personal opinion than any legal opinion based on law or grounded in hard facts.