Saturday, July 11, 2009

By-Election Predisposition

Introduction

A massive amount of time and resources have been devoted to the issue of the course to be properly taken once a victorious electoral candidate has been found to be "disqualified" under S. 40 of the Constitution of Jamaica.

Simply put, the crux of the matter is whether the second place candidate should, without more, be accorded the seat by the court; or that the said election be deemed null and void and a by-election ordered to decide the people's representative. This matter consumed inordinate amounts of energy - judicial and otherwise - due primarily to the silence of the Constitution on what recourse should be adopted in such circumstance.

A cardinal tenet of democratic government is that the people must decide their representatives and not a select grouping - no matter their qualification or status.

The Constitution of Jamaica fully recognized this imperative even though it expressly delegates the determination of questions as to membership of either House to the Supreme Court, or on appeal to the Court of Appeal. Such questions relate to (a) the validity of those so elected or appointed and/or (b) the member vacating his seat or ceasing to exercise any of his functions as a member [S.44(1)]

A Matter of Parity

The Constitution of Jamaica expressly declares the dilution or diversion of loyalty to Jamaica as offensive to the extent that such actions "disqualifies" a candidate for election as a member of the House of Representatives or appointment to the Senate. Furthermore, once a sitting member embarks on such offensive behaviour, a court can determine that his seat be declared "vacant". [S. 41(1)(d)(e)]

Interestingly, the Constitution of Jamaica treats such offensive behaviour by a sitting member more seriously than mere candidates to be elected or selectees to be appointed to wit:

41. (1) “The seat of a member of either House shall become vacant …………….

(d) if he ceases to be a Commonwealth citizen or takes any oath or makes any declaration or acknowledgement of allegiance, obedience or adherence to any foreign Power or State, or does, concurs, in or adopts any act done with the intention that he shall become a subject citizen of any foreign Power or State.” [emphasis added]

(e) if any circumstances arise that, if he were not a member of the House, would cause him to be disqualified for appointment or election as such by virtue of paragraph (b) or (g) of subsection (2) of section (40) of this Constitution.


At present, there are no penalties or restrictions to be imposed on the offending member if he purges himself to either be re-appointed or to contest the by-election. The recourse for the "more serious" offence is the seat being declared "vacant" and a by-election held. Albeit unstated, the "less serious" offence cannot attract a more serious recourse.

It is here contended that the Constitution of Jamaica is not predisposed to accord the seat to the losing candidate (or the second placed) if the winning candidate is declared "disqualified" ;or the sitting member's seat in the Lower House is declared "vacant" by reason of the said offending behaviour.

Concluding Comments

It is a pity that more focus was not attuned to the wording and implications of the provisions of the Constitution of Jamaica. Too often there is an over-reliance on deliberations of other courts from foreign jurisdications with a slavish intent of following the precendents set by others who (by nothing more than belief) are deemed to be wiser.

Sadly, the judgement of the Court of Appeal on this matter does not reflect any new thinking or instructive reasoning. It will not be of any moment in the development of so-called "Caribbean jurisprudence".