Questionable Conduct: The Jamaican Political Reality

Real Sanctions Needed

2011-06-12T19:42:00.000-04:00

The dual citizenship saga has demonstrated the clear and urgent need for effective deterrents in respect of breaches in the supreme law of the land – the Constitution – by those sworn to uphold its provisions. It is evident that political expediency has trumped principle. Our law makers have effectively turned a blind eye to their colleagues who knowingly and blatantly perpetuate breaches of the Constitution.

The offending parties wait to be “discovered” and then take advantage of the pathetically slow pace of justice to prolong the breach. The substantial cost of civil litigation have forced some to fess up and hurriedly take the appropriate action to regularize their occupancy. However, the cost of litigation apart, the offenders are able to keep their ill-gotten gains – the proceeds of their constitutional crimes.

As presently constituted, the penalties under the Constitution are laughable and have never been enforced publicly in breach. In the absence of a culture of transparency, accountability and resignation, it becomes necessary to outline in detail real sanctions to deter would-be offenders and punish those lacking the requisite political integrity. To that end, it is being proposed that the Parliament consider amending the Constitution of Jamaica to include the following provision:

Where a Member of Parliament has occupied a seat in Parliament in breach of the Constitutional provisions for a specific period of time, that Member shall not be entitled to the remuneration and pension provisions that have been paid or will be due to be paid for that specific period of time.

Merry Go Round Clowns

2011-02-23T14:56:00.000-05:00

Initially, the position of the government and the Jamaica Labour Party (JLP) was that:

The MOU"S breached the constitutional rights of Jamaican people;
The MOU's were legally invalid as the provisions were in conflict with the laws of Jamaica;
Dr. Peter Phillips secretly and without the requisite authority entered into such agreements (MOU1 & MOU2) with agencies of the US government (DEA, CIA, FBI)

Curiously, in the Manatt Commission of Enquiry, the JLP had distinct and separate legal representation from Prime Minister Bruce Golding. The JLP, through its attorney Frank Phipps QC, maintained the position that the MOU's facilitated the breach of the citizens' constitutional rights.

PM Golding's attorney, Hugh Small QC, seemed at times to be lending support to this seemingly principled position.

The PNP's attorney Senator K.D. Knight QC. brought to the attention of the COE Prime Minister Golding's admission in Parliament that the current government of Jamaica "wholeheartedly endorsed" the MOU's. Surprise, surprise!

Security Minister Nelson testified that he supported the PM's assertion "in principle" but "not the methodology". In short there had been a breach. This is the first time that the objection to the Dudus Extradition Request had been couched in such terms. More surprise was yet to come.

Security Minister Nelson stated that the government was now involved in a process to amend the existing legislation to "legitimize the breach". WOW!

So we have spent much time and taxpayers funds to come full circle. The seemingly principled position originally adopted has been effectively abandoned, to wit:

The sell-out MOU's have been wholeheartedly endorsed and not annulled by this JLP government.
The operational terms of the sell-out have been breached;
The breach has been condoned by the government now taking steps to legitimize the breach;
The JLP regime is now seeking to perfect the terms and conditions of the "sell-out" ;

The ultimate "breach free" is deeply entrenching such provisions in the Constitution of Jamaica. That will never take place as the JLP is deadly afraid of anything requiring a referendum.

It has generally been accepted that there has been a "Web of Deception". Dr. Peter Phillips used the phrase as early as March 24, 2010. SG. Douglas Leys has adopted the phrase to describe the events. The Manatt COE will now have to identify the Chief Spider. The "Web of Deception" would seem to involve some agreement among more than one and actions taken in furtherance of such agreement. In short a conspiracy to deceive.

However, the most recent revelations give rise to the suspicion that there has been deliberate usage of state financial resources ($40 million ) to undertake an investigation - the futility of which is indisputable. In short, a conspiracy to defraud.

There have been media reports raising concerns that high priced QC's have been employed at taxpayer's expense. The selection of the attorneys has not been transparent. Why would experienced attorneys need legal representation when they are merely called upon to give an accurate account of what actually took place?

It makes little or no sense to be investigating the legality and ethics of memoranda that have been "wholeheartedly endorsed", fully recognized and faithfully implemented by the current JLP regime. Irrespective of the findings of this Manatt COE, the JLP regime has started the process of "legitimizing the breach"; not specifically and unambiguously outlawing the breach. So making the breach legitimate apparently no longer signs away the citizens' constitutional rights".

Hence more of the actions (once classified as breach) will continue but with legal lubricated conduits - utilizing the terminology adopted by the PM himself.

At the end of this COE, cotton candy should be distributed to the participants. Its character expecially its texture aptly captures the lack of substance of this enquiry.. Cotton candy after all is the customary treat at circuses - irrespective of the cost. This would be a fitting tribute to a bunch of clowns!!

Call Lorna Golding

2011-02-19T12:42:00.008-05:00

Many reputations are being put to the test during the Manatt COE hearings. We have heard from public officials, specifically charged with dealing with extradition cases. We are yet to hear from the political operatives. However, none of the players in the Dudus Extradition Affair (DEA) has had personal reputation smeared in the press as had Mrs. Lorna Golding, the esteemed wife of PM Bruce Golding.

Wikileaks was wicked. They purported to disclose official comments made by the US representative of the happenings at a "Tea Party" (a misnomer as no tea was reportedly served). A number of damaging allegations were contained in those official communications. These include, apart from the offering to serve day-old salad made by her husband (Iron Chef Bruce?) :

The PAO's conversation with Mrs. Golding covered a wide array of topics, from salads and manicures to the Coke extradition request (Ref A) and Jamaica's pending negotiations with the International Monetary Fund.
Mrs. Golding attributed the Coke extradition request to Congressman Rangel's "whispering in Secretary Clinton's ear" and the PNP's "pernicious influence" within the Jamaican diaspora, and insisted that the extradition request had been orchestrated as a means of embarrassing her husband politically.
Despite assurances to the contrary, Mrs. Golding remained convinced, as do many Jamaicans, that the White House's delay in naming a new U.S. ambassador is because Jamaica has been "downgraded" as a result of the extradition request delay.
(NOTE: Mrs. Golding was apparently unaware that, earlier in the week, the Office of the Prime Minister had released a statement to the press indicating that the delay in naming an ambassador was due to the White House's "preoccupation with other matters" and was unrelated to the extradition request.

Wikileaks has an international audience. Internationally there is a level of credibility attached to internal US government official communique. Incidentally, PM Golding visited the salad party briefly. Mrs. Golding must be given an opportunity to clear her name. Whether or not she accepts the invitation, the terms of reference of the Manatt COE obliges the exploration of the conduct of any public person who interacted with US government officials in respect of the Dudus extradition.

What was the intended objective of Mrs. Golding in inviting the US government official to tea?
Did she receive any background briefing on the topics she intended to raise?
What contribution, if any, did PM Golding make to the proceedings?
Did she, previous to issuing the invitation to tea, inform her husband of the intiative?
Did her husband Orette "sanction the initiative"?
Did she report to OB her impressions of the outcome of the event?
Was she "congratulated"a la Robinson & Brady for her achievements?
Has she tendered her resignation aka separation a la Robinson after a different interpretation was placed on her Tea Party?
Who paid for the refreshments served (assuming the day-old salad was gratis)?
Has she ever met Christopher Micheal Coke aka Dudus aka Presi?
In what capacity did she invite and host that salad party? Wife of the PM? Wife of Orette? Wife of Party Leader? Wife of MP for West Kingston or just Lorna G?

The US communique highlighted in its conclusion -

Mrs. Golding insisted that she had invited the PAO to have tea on her own initiative and that the PM, although aware of the meeting, hadn't put her up to it. This is likely true, given that Mrs. Golding appeared completely unprepared, could not stay on message, and had no apparent talking points or agenda.

Will the Manatt COE come to a similar conclusion in its finding?

Source: UK Guardian

Cartoon & Cash Cow

2011-02-16T16:40:00.006-05:00

We have been told that the budget allocation for the Dudus/Manatt COE is approximately J$40million. We have also been informed that the remuneration package for the Chairman is approximately J$30,000.00 per hour.

We have not been told if the hourly rate is confined to the public sittings; or if it applicable to consultations between Commissioners; or to deliberations in compiling the final report. Neither have we been informed of the remuneration packages of the other Commissioners, the Secretary, Counsel to the Commission or his assistants.

In the interest of transparency, the Commission should make public the various remuneration packages and the presumptions underlying the $40 million budget. From the current proceedings, it is fair to infer that there is likely to be significant cost overruns, especially in light of the hourly rate component.

Clovis' cartoon in the Observer, Tuesday February 15, 2011 captures in vivid colours the display of legal manoeuverings, that have characterized the hearings to date. The talents on display could amount to some 7 QC's with junior lawyers in supporting roles.

Queen's Counsels do not come cheap; neither do those of long standing who do not have that colonial appellation. Some have attended every sitting - seemingly oblivious to the fact that the witness in attendance will not touch and concern their client's interest.

The media coverage, especially live feeds supplied by JIS to various media outlets, makes that an invaluable marketing tool. The public may be excused from the view that if you are not at the Commission, then you "nah sey nutten" as an attorney.

Indeed, so invaluable is the exposure that attorneys without any brief have sought to occupy strategic seats behind the main actors. Aware that the camera is focused in their direction, they adjust their heads periodically to ensure that "you see me now".

Well that invaluable exposure is provided free of cost to those attorneys not taking part in the proceedings. However there is one troubling concern:

Who is paying the fees of the attorneys appearing before the Commission?

One would have thought that individuals who have sought to obtain the services of individual attorneys would have had to bear such cost,. as opposed to complete ministries or departments which are represented by one set of attorneys. For example: note is made of the absence of any attorney representing the Ministry of Justice. Yet there are at least two representing the Minister/AG, two representing the SG and two representing the Deputy SG.

We must therefore ask:

Are the taxpayers of Jamaica bearing the cost of legal representation for the thre members of the Ministry of Justice? If yes, then what are the details of such billings and how were the legal representations procured?
Are there situations outside that in the Ministry of Justice (say Ministry of National Security) where a similar arrangement - private legal firms at taxpayers expense - has been made? If yes, then can the public be informed as to the manner in which these services were procured and the cost?

We have been entertained but the cost of such entertainment might engender an opposite response. There is a Jamaican saying: "wha sweet nanny goat a go run him belly".

Are we destined for a national outbreak of diarrhoea?

Source: Jamaica Observer

"Web of Deception" - Phillips

2011-02-15T22:16:00.006-05:00

Solicitor General Douglas Leys grabbed headlines recently by his use of the phrase "Web of Deception". Curiously Dr. Peter Phillips, former Minister of National Security under a previous PNP regime is reported to have used that exact phrase from as early as March 24, 2010.

Below is an extract from Dr. Phillip's Statement.

The timeline will serve to demonstrate the web of deception and uncertainty that surround this matter. It also serves to put in context the seriousness of the issues.[emphasis added]

August 25, 2009

Extradition request for Christopher “Dudus” Coke.

September 18, 2009

First diplomatic note from the Government of Jamaica requesting additional information.

Bill payment made to Manatt Phelps and Phillips (MPP) for US$49,892.62 from Harold Brady (GJ) for services rendered per billing agreement.

October 1, 2009

Contract between Harold Brady and MPP signed. Harold Brady was referred to as “Consultant to the Government of Jamaica authorized on behalf of the GOJ to approve of the engagement of MPP as set forth in this letter…”

October 13, 2009

First filing by MPP with the US Department of Justice under the Foreign Agents Registration Act (FARA) setting out the contract dealing in political activities for a fee of US$100,000.00 per quarter

October 13, 2009

Short Form Registration statement filed by MPP lawyer Susan Schmidt which declares that she is the partner who will engage in political activities as defined in the contract.

November 12 , 2009

Amendment/revision to the FARA filed on October 13, 2009

December 10, 2009

Short Form Registration statement by MPP lawyer Kevin Di Gregory.

February 4, 2010

Amendment to the registration form filed by MPP. MPP still represents themselves on the USA ’s DOJ website as representing the GOJ and confirms that a bill of US$49,892.62 had been paid. This contradicts Mr. Brady’s assertion (on radio on made March 17, 2010) that he had corrected the agreement which listed him as representing the GOJ,

March 16, 2010

Prime Minister responds to questions posed by Dr. Peter Phillips in Parliament. PM vehemently denies any link between the Government and MPP.

March 17, 2010

Harold Brady interviewed on Nationwide Radio Programme and denies that he was a consultant to the Government of Jamaica. He said he had corrected the contract with MPP which listed him as representing the Government of Jamaica.

Mr. Harold Brady issues statement denying that he was retained by the GOJ to act on its behalf in the matters referred to in Parliament.

Minister Daryl Vaz tells journalists during a Post Cabinet Press Briefing that the document proving the corrections that Harold Brady said he made to the contracts have been requested from Mr. Brady.

March 18, 2010

Statement from the Prime Minister acknowledging that the Solicitor General in fact had made contact and had met with Representatives of MPP.

He denies any contractual arrangements with them and that MPP had accompanies the Solicitor General to meetings

March 22, 2010

Newspaper article quotes Minister Vaz as saying he had received documentation from Mr. Brady, but he was unable to get to his office to retrieve them until the following Monday.

Radio reports outlined that the documents would be perused by the Cabinet

March 23, 2010

Still no further information from the Cabinet or any other Government on the matter

Since then, based on the statements made by Prime Minister Golding himself, the Information Minister, Daryl Vaz, and Mr. Brady, the country has been left with more questions than answers. There has been more than an appearance of public deception by the Prime Minister and the Government.

Source: Statement by MP Peter Phillips on Manatt Phelps & Phillips

Questions Nobody Asked: Lewin

2011-02-08T23:31:00.003-05:00

What exactly was the response of the Minister of National Security to the information you relayed?
You said on CVM TV words to the effect that the Minister "turned white". Could you please elaborate?
How long did you observe that change in pigmentation?
Did the Minister do or say anything during the duration of the shade change?
How did you react when you observe these Ministerial changes?
How did the Chief of Staff react?
Did the Chief of Staff relay any information to the Minister during that meeting?
Did the Minister of National Security say anything to the Chief of Staff?
You have said that the Minister took about ten minutes to locate the PM by phone, did this seem unusual to you?
Did the Minister indicate that he was experiencing a difficulty in making telephone contact with the PM?
Can you say, with any degree of certainty, that the Minister of National Security only spoke to the PM via telephone in your presence?
Can you say, with any degree of certainty, that the Minister during your stay only attempted to make contact with the PM solely?
You said that the meeting with the PM lasted between five and seven minutes, what was your expectation of that meeting? Were you surprised as to the nature and duration of the meeting?
Did the PM subsequently make any contact with you in relation to this extradition matter?
After the meeting, did you have any discussions with the Chief of Staff in respect of the extradition?
After the Vale Royal meeting, did you attend any meetings involving the PM and the Minister of Justice concerning at which the extradition request was discussed?
Given that there was telephonic monitoring of Dudus, can you indicate if any attempts were made to trace the source of calls made to him during the period from when you left the Ministry of National Security to the time you left Vale Royal?
Can you indicate if the attempts were successful?
On that CVM TV interview, you stated that during the interval between your departure from the Ministry of National Security and your arrival at Vale Royal, Dudus was tipped off. When were you informed of that? How reliable was that intelligence data? Have you any indication of how many times Dudus was tipped off? Was the tipping off done by telephone? Do you have any indication how many individuals were involved in the tipping off?
Were you ever informed of the route taken by Dudus in his move from his location to Tivoli? Was Dudus somewhere in Plantation Heights when tipped off? Could you inform the COE of the route taken? Was there any attempt made to apprehend Dudus?
Was Dudus monitored during his journey to Tivoli? How many persons were in the vehicle with Dudus? Was more than one car involved? Did your intelligence indicate if the occupants were armed or unarmed?
Were you ever made aware of the exact location of Dudus within Tivoli at any time after that Vale Royal meeting?
Can you to the best of your knowledge indicate if the security forces were monitoring Dudus in Tivoli up until the time of your departure from the JCF?
Given the plans and procedures that you have said were in place, is it your considered view that if Dudus was apprehended before your departure from the JCF, the "collateral damage" would have been significantly reduced.

National Security Violations

2011-02-02T20:37:00.007-05:00

"There can be no secret anywhere in Jamaica that allows the breach of the citizen's constitutional rights."

Frank Phipps Q. C.
Manatt COE Feb 2, 2011

The four MOU's were classified as secret documents executed by the then Minister of National Security and Justice, Dr. Peter Phillips, and security agencies of the US and UK Governments.

So "SECRET" was the classification that they could not be located in the Ministry of Foreign Affairs, not seen by those in the office of the Director of Public Prosecutions (DPP) and apparently not located in the Ministry of Justice - specifically in the Solicitor General's Department.

There is no evidence to date that the mystery memoranda were discussed by the Cabinet or brought to the Parliament of Jamaica.

The plot thickened when it was revealed that the representatives of the US Government purported to rely on such memoranda but refused the GOJ request for copies.

The Happenings

It now turns out that the Attorney representing the JLP appears to have had in his brief a copy of memoranda and had in fact offered to supply a copy to fellow counsel from as early as January 17, 2011.

From the manner and detailed reference to the mystery memoranda by the Attorney representing PM Golding, it is reasonable to infer that he too may have been supplied with such information in his brief.

Preliminary Considerations

The unauthorized possession of national security documents that have been coded "SECRET" is not protected by claims of attorney privilege. Moreover the quotation above is a political statement, laced probably with moral/philosophical justification, but devoid of any legal basis.

Indeed we may be left to wonder if the forces that facilitated the unauthorized possession of classified documents to the attorney are the same ones that facilitated the unauthorized possession of classified documents to the fugitive.

No civilized society can be run on the basis of any one man - irrespective of his legal acumen - deciding that national security classification of any document can be ignored because in his personal opinion such document "allows the breach of the citizen's constitutional rights".

That does not provide any legal justification for his unauthorized possession or the sharing of such with elements in the media by facilitating forces. The recipients should be made to account for how they got illegal possession or unauthorized access to such highly classified national security documents.

In some countries the "unauthorized possession of access to or control over classified documents" especially in the national security portfolio, is designated a felony (as opposed to a misdemeanor). In a world increasingly characterized by organized transnational criminal activity (and the concomitant widespread public corruption), respect for the classification of highly sensitive security documents is a necessity (even if not deemed desirable by some).

The Sharon Hay-Webster Case - Two or Twin?

2010-12-20T11:12:00.008-05:00

Sharon Hay-Webster has been a Member of Parliament since 1997. The JLP has filed a claim No. 2010/HCV 06123 in the Supreme Court that Sharon Merle Hay-Webster at Nomination Day, August 7, 2007, was a citizen of the United States of America and therefore was not duly nominated. As such she was in contravention of section 40 (2) of the Constitution of Jamaica.

Published Information

The claim relies on an article published in the Sunday Gleaner April 27, 2008, the following are pertinent:

Hay-Webster

was born in the USA in 1961,
had a Haitian mother and a Jamaican father,
came to Jamaica as a small child and has lived in Jamaica ever since
as an adult applied for and received a US passport
in 1987 applied for Jamaican nationality and took the Oath of Allegiance
contends that she has "never used a US passport to leave or enter Jamaica" although she has traveled to some 43 countries.[emphasis added]

The Contention

The JLP's claim, brought in the name of Devon McDaniel - the losing JLP candidate in the September 3, 2007 general elections - asserts that Hay-Webster is a US citizen holding a US passport at the time of her nomination.

The claim conveniently ignores that Hay-Webster applied for Jamaican nationality and took the Oath of Allegiance after she had applied for and received a US passport. This may or may not provide a critical difference.

The situation is further complicated by a couple of unknowns:

Did Hay-Webster renew her US passport after she gained Jamaican nationality?
Although Hay-Webster stated that she had never entered or left Jamaica using a US passport, did she ever use a US passport to enter or leave the US or any of the 43 countries she has admitted visiting?

A Matter of Application

The Constitution of Jamaica has two sets of filters for an individual to be duly nominated as a candidate for election to a seat in Parliament. The first set of filters is contained in section 39 which states:

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.

Hay-Webster, at the time of her nomination, satisfied the conditions stipulated and was duly qualified provided that she was not caught by any of the disqualification conditions outlined in section 40 - the second set of filters viz:

Section 40

“(2) No person shall be qualified to be appointed as a Senator or a Member of the House of Representatives who –

(a) is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State:”

Likely Outcomes

If Hay-Webster renewed and traveled on a US passport to anywhere in the world after acquiring Jamaican nationality, she would have been disqualified following the decision in Abraham Dabdoub V Daryl Vaz et al.

If indeed Hay-Webster had applied for and received a US passport after she had taken the Oath of Allegiance for Jamaican nationality then she would have been disqualified.

If either of the above conditions existed then it is likely that Sharon Hay-Webster was never duly nominated not only in the September 2007 general election but in every general election in which she has been a candidate.

The stated intentions of Hay-Webster to renounce her US citizenship and not to contest the next general election are of no moment whatsover.

Challenging Hayles

2010-07-04T22:36:00.002-04:00

It is being contended that on nomination day Ian Hayles had a valid US passport and was a citizen of the USA. Accordingly he could not have been properly nominated and following the recent established precedents his seat ought to be declared vacant.

The response has been that the court has no jurisdiction over such a matter as the time prescribed for election petition challenges has duly expired. That defence is procedural, however if Hayles had irrevocably renounced his US citizenship and surrendered his US passport before nomination day then such would have been a complete defence.

Court of Appeal Judgment

By-Election Predisposition

2009-07-11T12:00:00.005-04:00

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".

Intent of the Framers

2009-06-28T11:21:00.008-04:00

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.

Missed Opportunity - Commonwealth Citizenship

2009-06-27T18:33:00.011-04:00

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)

Ask the Framers

2009-03-19T14:21:00.002-04:00

A lot of time and energy have been devoted to what has been loosely called the "DUAL CITIZENSHIP DEBATE". Much interest has been accorded to the status of Jamaican citizens who have voluntarily acquired citizenship status of other Commonwealth states. More specifically, are such persons disqualified under Section 40 .2 (a) of the Constitution of Jamaica from either being elected as Members of Parliament, or appointed to the Senate?

There are a number of ways to ascertain the true intention of the framers of the Constitution of Jamaica. The first is quite evident: read the words used in the section and employ a literal meaning. In case of some ambiguity, resort can be had to how similar sections and phrases used have been interpreted in other Commonwealth jurisdictions in the event that courts in Jamaica have not clarified the situation. However, there remains another avenue: ask the framers if they are still around, or consult their writings on the subject if such is available.

We in Jamaica are fortunate. Still in our midst are two such persons who were intimately involved in the process. One is reported to be The Most Honourable Edward Seaga--a former Prime Minister, the other Mr. David Coore Q.C.--a former Minister of government. Both were Members elected to the Lower House. Mr. Seaga has sought to contribute to this debate. Given the handing down of the Court of Appeal's written reasons for upholding the Chief Justice's ruling, it is appropriate to highlight this insightful analysis.

Loyalty to Country published in the Jamaica Gleaner: Sunday August 19, 2007

Edward Seaga, Contributor

A good deal of public interest has been aroused about the question of citizenship and loyalty.

Many people who are residents of Jamaica have their roots in a foreign country where they were born. They love Jamaica but their loyalty is to the country of their birth.

Many others find themselves in the opposite set of circumstances: they were born in Jamaica but have migrated to another country where they have taken up citizenship. But they still remain loyal to Jamaica.

Still others are born here, have their residence in Jamaica but have become citizens of another country.

most migratory people

It is not surprising that these variations exist. Jamaicans are among the most migratory people in the world. Any country which has as many of its people living abroad as at home, as Jamaica does, must have the distinction of being world migrants.

Modern constitutions allow for these multiple linkages. Hence, it is possible to have citizenship of more than one country, mostly dual citizenship. In many countries it is possible to hold more than one passpor generally, the authorities frown on this. A good many Jamaicans in the diaspora probably fall into this category. They enjoy the best of both worlds, holding both a Jamaican passport and the passport of another country.

Dual citizenship

Dual citizenship allows privileges in both countries. These privileges are broad enough to allow a dual citizen to enjoy educational benefits in one country and health benefits in another. In some cases, a dual citizen can vote in both their country of residence andcountry of birth. But one thing a dual citizen is very unlikely to do is to hold passports in both countries and become an elected or appointed Member of Parliament. This is where the factor of allegiance to the country, or loyalty, arises. A government must be certain about the loyalty of its citizens. A citizen who is disloyal can face serious penalties, including treason, depending on how far the disloyalty is taken.

Government safeguard

The Government of Jamaica provides this safeguard in the Constitution. A Jamaican citizen who has fulfilled the requirement of citizenship of another country, taking an oath of allegiance, or obtaining a passport to certify identity, cannot be constitutionally elected or appointed to a seat in the Jamaican Government because one person cannot hold allegiance to two flags.

The Constitution of Jamaica, in Section 40 (2) sets out clearly that:

"No person shall 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 acknowledgement of allegiance, obedience, or adherence to a foreign power or state."

This provision of the Constitution has several important consequences:

(i) "Any person seeking election or accepting appointment to the Jamaican Parliament who is a citizen of another country can be disqualified."

But persons born in a foreign state are not disqualified by virtue of origin of birth alone, since they would not be responsible for their place of birth, unless they performed an act to demonstrate their allegiance to another country. Such an act includes obtaining a passport. This is to ensure that no penalty is applied on the basis of birth alone.

(ii) Disqualification is not automatic. The sanctions for a breach have to be declared in a court of law as a result of a petition brought before the court by a person who has sufficient cause. Hence, in an election, if the successful candidate is a citizen of another country and holds a passport of that country, thena petition from persons in the constituency can result in the winner losing his or her seat.

In such a case, the court would order a by-election to run the seat again, at which time the candidate with a foreign passport would have a chance to renounce his foreign citizenship before the by-election in order to successfully contest the seat in accordance with the Constitution.

(iii) It is popularly believed that this provision of the Constitution does not apply to Commonwealth countries. This is not true. Every other country is a foreign state in the Jamaican Constitution. Hence, the disqualification applies to Canada, the United Kingdom, Nicaragua, Bahamas, and all others. A Jamaican holding a Trinidadian, Grenadian or other passport would be liable to disqualification if they contested a Jamaican election.[emphasis added]

This provision of the constitution would prevent any member of the diaspora from accepting appointment to the Senate unless they renounced their foreign citizenship - an unlikely act.

I understand that possibly one dozen candidates currently campaigning for seats in the August 27 general election have found themselves with this problem. If they are successful in winning their seats they could face a decision of the court which could overturn the electoral decisions, leaving them to face by-elections. This could keep the final outcome of the election in suspense for months, if there was a narrow win.

Problems of dual citizenship

I faced the problems of dual citizenship because of my birth in the United States, over which I had no control. I voluntarily renounced my American citizenship in 1959. I did not have to. I could have retained it and still become a member of the Jamaican Government by simply not obtaining an American passport, or performing any act of allegiance to the United States. But I did not go part-way. I decided to remain a Jamaican only at the expense of surrendering my American citizenship, making me undisputedly a citizen of Jamaica and Jamaica only.

These decisions are hard to make and preferences are usually personal, but preferences for parliamentarians should be directed to country, not to self, for anyone to be worthy of representing their country with integrity.

I trust that those persons who get a second chance to renounce their foreign citizenship to qualify as a candidate will do the right thing.

The Chief Justice's Ruling - Dabdoub v Vaz

2009-03-17T20:51:00.004-04:00

The Court of Appeal has handed down its written reasons for upholding the ruling of the Chief Justice.In order to fully appreciate the reasoning, it is prudent to place such in the context of the deliberations before the Supreme Court. The Chief Justice goes into detail the arguments that were pertinent to her decisions.

As is the pattern, such is posted without any comment.

For what it is worth, my comments have been posted in earlier blogs: notably Beyond McCalla and Lessons for Parliamentarians.

Dabdoub v Vaz[1]

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New Nomination Paper Needed

2009-03-16T21:22:00.010-04:00

Given the handing down of the written judgement by the Court of Appeal , the pending by-election and the real possibility of a number of such by-elections due care should be taken to ensure that the costly mistakes are not repeated by feigned ignorance of the disqualification provisions contained in the Constitution of Jamaica.Accordingly, we take this opportunity to post a publication made in the Gleaner sometime ago:

New Nomination Paper needed for elections published: Tuesday May 6, 2008

The Editor, Sir:

Elections - general or a series of by-elections - are in the air. Political parties have begun a not-so-subtle propaganda campaign in the mass media. The issue of a person not being qualified to be nominated and the public awareness of the possible disqualifications have come to the fore via the ruling of McCalla, CJ, in the Dabdoub v Vaz et al.

The current Nomination Paper only focuses on the basic qualification in Section 39 of the Constitution of Jamaica without stating the requirement. This presumes that the nominating electors are either acquainted with the Section or walk with the Constitution when the form is being completed. Both presumptions are on very fluid grounds. There is nothing on the form in use to alert the nominating electors or the nominee to the specified disqualifications contained in Section 40.

Implementing measures

In an attempt to prevent a recurrence of "confusion in the minds" of the electorate, it may be wise to implement measures aimed at raising the awareness of prospective nominees, the persons nominating the candidate and the constituents.

One such measure could be an affirmation to be completed by the prospective candidate and witnessed by the returning officer. The form would contain a listing of all the conditions which would cause a candidate to be disqualified from being duly nominated [Section 40 (2) Constitution of Jamaica]. To wit:

A citizen of any other country except Jamaica

Under 21 years of age

Certified insane

Declared a bankrupt in a Commonwealth state and such bankruptcy has not been discharged

Serving a sentence exceeding six months or such sentence is suspended

Convicted of any offence connected with elections - local or general.

Certified copies of the duly executed nomination paper should be prominently displayed in a number of appropriate public spaces in the constituency, such as the local electoral office, polling stations, post office and any other locale where the list of registered electors in the constituency is made available.

False declarations would occasion a financial penalty being imposed upon conviction in a Resident Magistrate's Court and the subsequent prohibition from being a candidate in any election - general or local.

I am, etc.,

Dr PAUL ASHLEY
Attorney-at-Law

Judgement Delivered - Court of Appeal

2009-03-13T20:54:00.002-04:00

In the interest of widespread dissemination of a much-awaited judgment, we have facilitated easy access to the document. We do so without comment; so that you will not be influenced in arriving at your own conclusions.

Our analysis will be conveyed in another post. In the meanwhile, read the judgement in the context of the submissions made before the court. These have been posted earlier; so just scroll down and use the inset.

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A Past but Useful Guide

2009-03-12T19:09:00.012-04:00

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”.

A PENDING PAPPYSHOW

2009-03-04T17:40:00.012-05:00

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.

The Coat of Surreal: Not Ready

2009-03-01T13:42:00.007-05:00

On Friday, February 27. 2009, the Court of Appeal announced it's decision in the Dabdoub v. Vaz appeals devoid of a written reasoned judgement.

Politically, the notion of the people deciding who shall represent them in Parliament, is incontestable. The mobilization of the political party's electoral machinery has untold beneficial effects for constitutents as it is at election time that politicians are forced to "pay" special attention to the needs of the people.

Legally, there are a number of serious concerns:

We have a Constitution and have accepted the notion of the Rule of Law;

The courts are the enforcers of the Constitution and the Rule of Law;

The courts' decisions must reflect this unique mandate and be open to public scrutiny;

Obviously, the Court of Appeal was not ready to hand down a written reasoned judgement. The unavoidable question is:

What factors determined this announcement at this time?

For a matter dealing with the Constitution of Jamaica (the supreme law of the land) and the Composition of Parliament -which could have devastating implications for the government -to have taken so long (approximately 18 months) is totally unacceptable.

For the judges of the Court of Appeal (the final arbiter in such election petition matters) to announce a decision which has implications for other pending cases without written reasoning is inexcusable.

We humbly submit that this is not a complex matter necessitating countless hours of cerebral exertion. Both sides presented copious arguments and researched the gamut of case authorities. Moreover, the Chief Justice had handed down a written, reasoned judgement - a judgement which the Court of Appeal upheld.

To come now and just announce the dismissal of the appeals and the upholding of the Chief Justice's ruling is:

woefully insufficient;
unworthy of a learned tribunal;
further accelerates the erosion of public confidence in the judiciary;
adds substance to the case for the retention of the Privy Council.

To promise delivery of the reasons in writing within two weeks adds further insult to the contemptuous in jury. Why not wait two weeks before making any announcement and deliver the much-awaited reasoning? What difference would 14 more days make to a process that to date has exceeded 510? Did political considerations influence the timing of this announcement?

Small societies are especially vulnerable to rumours, allegations wild speculations and suss. Court decisions that have far reaching political consequences are always open to charges of political interference, undue influence, discussions of the percieved political loyalties of the judges concerned and a formidable grist for the mill of conspiracy theorists. Regrettably the Court of Appeal on this occasion seemed oblivious to this reality. It did itself an injustice.

With due respect.

Dabdoub's Indian Case

2009-02-27T21:28:00.006-05:00

Abe Dabdoub and his esteemed legal team have brought to the fore a wide array of case authorities to support their position.

Below is a case which was not cited in the original submissions before the Court of Appeal but was unearthed subsequently. It is interesting since it emanates from a Commonwealth jurisdiction.

Per Shah J.

"We are again unable to see any logic in the assumption that votes cast in favour of a person who is regarded by the Returning Officer as validly nominated, but who is in truth disqualified, could still be treated as valid votes."

Konappa Rudrappa Nadgouda v _indian Case

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Responding to Disqualification Appeal

2008-12-14T12:40:00.004-05:00

As noted previously Daboudb's submissions are interrelated and intertwined. In responding to Vaz' appeal of the Chief Justice's ruling, Dabdoub submits inter alia:

The Respondent Dabdoub being the only candidate qualified to be elected and the only candidate who was duly nominated, is as a matter of law and by operation of the Representation of the People Act and the Constitution of Jamaica to be returned as the duly elected Member to the House of Representatives.

Dabdoub, having served Notice of and the facts giving rise to Vaz' disqualification be so notorious and known to the electors that the Respondent should as a matter of law be returned to the House of Representatives.

Having regard to the Chief Justice's own interpretation of S.40(2)(a) of the Jamaican Constitution, it is submitted that the Notice of Disqualification met the legal requirements of stating the facts which gave rise to the Appellants Disqualification.

It is submitted that the words used in S.40(2)(a) of the Constitution itself clearly denotes that the candidate's qualification is based on his status not of offence or misconduct.

The detailed submissions are set out below:

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Responding to By-Election Appeal

2008-12-14T12:23:00.003-05:00

The response to Dabdoub's appeal against the Chief Justice's order for a by-election is centred around three main submissions.

The concept of "votes thrown away" in relation to Parliamentary Elections being a doctrine reated under the English system of law is incompatible with the nature and structure of the Constitution of Jamaica. Furthermore, the concept of votes thrown away is unconstitutional.

The express language of S.40(2)(a) of the Constitution of Jamaica requires a finding that the individual has conducted himself in doing some action which acknowledges allegiance, obedience or adherence to a Foreign Power or State.

The facts in the Notice of Disqualification were unclear, indefinite and uncertain.

The detailed submissions are set out below:

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Appealing the By-Election Order

2008-12-13T18:30:00.003-05:00

Abraham Dabdoub's appeal against the Chief Justice's ruling can be divided into two overlapping and intertwined phases:

That the Chief Justice erred in law by failing to award the seat to the only duly nominated candidate on Nomination Day, August 7, 2007 in the constituency of West Portland; and
That the Chief Justice erred in law by failing to recognize and properly apply the distinction between "status" and "conduct" in coming to her decision on disqualification based on dual citizenship.

Numerous cases on votes being declared to be "thrown away" and the next candidate being duly seated by the court are cited.

The detailed submissions are set out below:

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Appealing Dual Citizenship Qualification

2008-12-13T16:04:00.007-05:00

Daryl Vaz has appealed the Chief Justice's ruling that:

On Nomination Day, August 7, 2007, he was not qualified to be elected to the House of Representatives for the constituency of West Portland;
Vaz' nomination on that day in invalid, null and void and of no legal effect. Hence he was not duly returned or elected as a Member of the House of Representatives.

In sum the Chief Justice found that Vaz at the time of his nomination was in breach of S.40(2) (a) of the Constitution of Jamaica, viz:

"No person shall 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"

Vaz' appeal against the disqualification based on his dual citizenship is centred around:

The Chief Justice failed to give effect to the plain meaning of the words of S.40(2)(a);
The disqualification does not apply to dual nationals who acquire citizenship involuntarily;
Expressio unius exclusio alterius;
In any event acquisition and travelling on a passport did not amount to acknowledgment of allegiance.

The detailed submissions are set out below:

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Awaiting Judgement

2008-12-13T10:52:00.007-05:00

The arguments are in; they now await judgement of the Court of Appeal - the final arbiter in matters involving the Election Petition Act.

The judgement of the Court of Appeal will be decisive as it will affect the fate of a number of the sitting members of the House of Representatives as well as those appointed to the Senate. The most profound effect could be the calling of a series of by-elections or a general election - depending on the ruling of the court.

The judgement is expected in early 2009 - in excess of 1 1/2 years since the new Parliament was convened. That cannot be a satisfactory situation where the very composition of the said Parliament is being questioned. The matters in issue involve the interpretation of provisions of the Constitution of Jamaica - ostensibly the supreme court of the land. Dependent on the nature of the ruling, it could be inferred that there has been either a conspiracy to subvert the constitution or a sacrifice of the constitution on the altar of political expediency.

The Context

After the Chief Justice handed down her findings a number of events were set in motion. Dabdoub announced that he intended to appeal the aspect of the judgement which declared that a by-election should be held instead of him being awarded the seat. Vaz initially had no problems with the Chief Justice's ruling, declared his intention to renounce his US citizenship and called for the said by-election to be held at the earliest possible date.

Then things got a bit complicated.Vaz announced his intention to file an appeal against the finding of the Chief Justice that his dual citizenship had disqualified him from being duly nominated. This was done as a so called "strategic move" - ostensibly to ensure that he remained in Parliament until the appeal was decided. Vaz subsequently renounced his US citizenship, issued repeated calls for Dabdoub to withdraw his appeal and proceed forthwith to the by-election.

Dabdoub stood firm, working the image of the protector/guardian of the Constitution of Jamaica to counter the political propaganda that he could only win the seat by court action not by an election.

The political situation became even more complex as the opposition People's National Party launched a number of legal challenges (seemingly spearheaded by Dabdoub himself) on a number of Government members centred around their alleged dual citizenship.

Enter Prime Minister Bruce Golding. His stance is that he would not allow anyone to sit in Parliament who was not elected by the people- ie. who gained the seat as a result of court adjudication.

The Submissions

The submissions of Dabdoub and Vaz are public documents; however the matters are under consideration by a court of law and as such the sub judice rule applies. In the interest of public awareness - especially those with vested interest - we intend to facilitate widespread access to those submissions. We do so without any comment on the merits of the cases.

Commonwealth Clarification

2008-06-02T02:14:00.005-04:00

There is growing public confusion surrounding the status of Commonwealth citizens and Commonwealth states in the dual citizenship debate. The confusion is fueled by:

The basic qualification of being a Commonwealth citizen - Section 39(a);
The seat of a member of either house becoming vacant if he ceases to be a Commonwealth citizen - Section 41 (1) (d);
The disqualification and vacancy provisions of being under any "acknowledgement of allegiance, obedience or adherence to a foreign Power or State" - Section 40(2)(a) and Section 41 (1)(d) respectively

The Constitution of Jamaica is silent on the interpretation to be accorded to the phrase "foreign Power or State". Some attorneys-at-law and public commentators are of the view that Commonwealth states are exempt from the said categorization. The issue is of paramount importance as there are Members owing allegiance to Commonwealth states other than Jamaica in both Houses.

The Supreme Court and Court of Appeal are empowered ,under Section 44, to deal with questions concerning the valid election or appointment of members of either House, or vacancy under Section 41 of the Constitution. The court could be moved to make a declaration of the interpretation to the phrase "foreign Power of State" as used in the Constitution. Any person, including the Attorney General, may institute such proceedings - Section 44(2).

We have posited the view, that in the absence of any definitive interpretation mandated by the Constitution, the settled interpretation under International Law becomes applicable. In short, any state other than Jamaica is "foreign" for the purposes of composition of Parliament.

Irreparable Damage

Currently, the divided allegiance issue is being dealt with in an ad hoc fashion as determined primarily by the courts. Consequently, the public is being kept in suspense whilst awaiting litigation procedures. Unfortunately the impression is given that mainly persons with US citizenship are being targeted. The Constitution of Jamaica has no inherent national discrimination. Indeed it would be tidier if all nationalities were put on the table regarding the composition of Parliament. The interpretation of the phrase "foreign Power or State" is central to this exercise. The integrity of Parliament should not be subjected to prolonged questioning. There is the real possibility of irreparable damage to institutions underpinning the foundations or our democracy. The process is taking much too long.

The Sedated Senate

2008-06-01T05:11:00.007-04:00

(Unedited Version)

The composition of the Senate is specified in the Constitution of Jamaica. Section 35:

The Senate shall consist of twenty one persons who being qualified as appointment as Senators in accordance with this Constitution have been so appointed in accordance with the provisions of this section.

Thirteen are appointed on the advice of the Prime Minister - Section 35(2) and the remaining eight on the advice of the Leader of the Opposition - Section 35 (3).

The disqualifications for membership in the Senate are similar to that of the House of Representatives. Accordingly, the judgement handed down by McCalla CJ. is applicable to members of the Senate insofar as it relates to the interpretation of Section 40 (2)

Amazingly, the Senators have maintained a stony silence and continue to find solace as they remain outside the glare of public attention which is focussed, albeit temporarily, on members of the Lower House.

Such non-response engenders the presumption that none is "by virtue of his own act under acknowledgement of allegiance, obedience or adherence to a foreign Power or State" - Section 40 (2) (a)".

It is open to public debate that this presumption is eminently rebuttable and can only be upheld by the Senators themselves coming out of the citizenship closet and declaring openly their status.

The situation is further compounded by the presence of numerous Attorneys-at-Law, Ministers of Justice, Attorneys-General and at least four Queens Counsel (QC) amongst this non-elected Upper House. The fact that those who nominated them were unmindful of the constitutional requirements cannot provide refuge in light of the publicity surrounding the dual citizenship saga in the elected Lower House.

The members of the Senate have no interest in the outcome of an appeal dealing ostensibly with the effectiveness of disqualification notices and electoral consequences. They need not await any court rulings or talks aimed at collective confessions. The Attorney-General should take the lead and the Opposition spokesman on Constitutional Affairs - himself a former Minister of Justice and Attorney General - could not restrain himself.

This is an opportunity to dispel popular notions that the Senate merely acts as a rubber stamp of the intentions of those below. The Senate can no longer remain sedated by electoral considerations. Integrity in public life demands no less.

"Declaration" Not "Determination"

2008-05-19T21:06:00.005-04:00

Both the Prime Minister and the Speaker of the House of Representatives have conveniently confused calls for declaration of citizenship status by Members of either House with the determination of questions as to membership of either House. The Chief Justice of Jamaica has determined that individuals who have renewed their US passports and travelled thereon are disqualified from being validly elected or appointed as a Member of either House.

Proponents of the impotence of the Speaker, in the matter of requiring a declaration by individual members, have sought to rely on Section 44 (1) of the Constitution which states:

Any question whether -

a. any person has been validly elected or appointed as a member of either House;

or

b. any member of either House has vacated his seat therein or is required, under the provisions of subsection (3) or subsection (4) of section 41 of this Constitution, to cease to exercise any of his functions as a member, shall be determined by the Supreme Court or, on appeal, by the Court of Appeal whose decision shall be final, in accordance with the provisions of any law for the time being in force in Jamaica and, subject to any such law, in accordance with any directions given in that behalf by the Chief Justice.

This section speaks specifically to which courts are to be involved in the determination of questions as to membership. In the Dabdoub/Vaz et al case the Supreme Court presided over by the Chief Justice made a specific ruling.

Both the Prime Minister and the Speaker cannot ignore that ruling and are obliged to apply such ruling to the Members of both Houses. This they have failed to do. So far as we are aware, it is only the Member for Western Portland who has sought to abide (in part) by the determinations made by the Honourable Chief Justice.

So far as we are aware, the calls for the declaration of the citizenship status of Members of either House have not sought to oust the jurisdiction of the Supreme Court or the Court of Appeal on the challenges being made to the validity of elected or appointed Members.

In light of the heightened interest in divided allegiance of the legislature, full disclosure of citizenship status is appropriate and ought to be deemed to be in the “national interest”. Secrecy is diametrically opposed to transparency and facilitates doubt as to integrity.

The legitimacy of parliament must never be open to serious question and nothing should be done by those sworn to uphold the constitution which could be interpreted as a conspiracy in furtherance of the breach of the provisions of the said constitution.

To quote the much-maligned Daryl Vaz, “law makers must not be law breakers.”

Roll Call or Death Knell

2008-05-18T22:14:00.009-04:00

It must be noteworthy that the editors of two Jamaican newspapers have echoed the call for Members of Parliament to declare their citizenship status. From as early as September 13, 2007 the Sunday Herald wrote:

“The Jamaican Constitution is very clear regarding who can be elected to the House of Representatives or be appointed to the Senate. No person shall be qualified to be appointed as a senator or elected as a member of the House of Representatives who by virtue of his own act acquires citizenship of a foreign power.
The legal issues aside, on what grounds are persons who are citizens of another country allowed to sit in our parliament and make laws, which we are obliged to obey? Such persons can catch the next plane and go home if anything goes wrong without being accountable.
Additionally, is it right for tax dollars to be used to pay members of Parliament who are foreigners? And is it not dishonest for persons whether representing the People’s National Party or the Jamaica Labour Party to present themselves as candidates for election without declaring their nationality?
The Parliament, with fewer than 100 persons especially entrusted to make laws, and run the affairs of the country are accountable to the Jamaican people. Therefore, their loyalty and allegiance should not be diluted, divided or diverted.
Against this background, we are calling for all members elected and nominated for parliament to declare their Jamaican citizenship before the next parliament is sworn in.”

Some eight months later on Sunday May 18, 2008 the Sunday Gleaner editorial opined under the caption "MPs must declare citizenship status".

“While we would want to believe that decency and morality would propel the members to do the right thing, we are clear that this is a matter that ought not be left only to the individual parliamentarians. Indeed, the Speaker should ask for a declaration from each member of his or her citizenship status, and from there, seek a judicial review of those whom he may deem to be in breach. The party leaders need, at the same time, to fashion a response to the potential fallout.”

In Over to You Mr. Speaker we posited the view that the Speaker, having the overarching responsibility to ensure that the parliament was properly constituted, could not ignore the ruling of Chief Justice McCalla in the Dabdoub/Vaz case. Consequently, an enquiry should be made into the citizen status of each Member of Parliament and those running afoul should be removed from Parliament. This would also apply to the Speaker.

This course of action has very serious political consequences as there are reasons to believe that there are more offending members on the Government side that on the Opposition benches. Accordingly, given the slim majority now enjoyed by the Government, there is the very real possibility that the Government could lose its majority at the end of the day. This is the political conundrum in the regime now finds itself as the logical and inevitable outcome to its political procrastination.

In Why a General, we advanced what we thought were cogent reasons for the holding of a general election. Increasingly it appears that the JLP regime has backed itself into a corner. Even the Observer in its editorial cartoon of Sunday May 18, 2008 has been forced to come to this position reluctantly.

From the information currently available,any such roll call will sound the death knell of this JLP Government. A general election has now proven to be the last straw for a drowning regime under a morass of what was incorrectly described as a "constitutional technicality".

Source: The Jamaica Observer

100% Jamaican Allegiance:Non- Discriminatory

2008-05-14T09:45:00.004-04:00

“It is abundantly clear that the constitution does not confer on every Jamaican citizen the right to be elected as a Member of the House of Representatives.” McCalla CJ.

There have been calls to abolish the constitutional provisions which stipulate the requisite citizenship status of the Members of Parliament and Senators.

It is being mused that given the age of globalization and the significant financial importance of the Jamaican Diaspora, the current provisions are obsolete, inimical to good governance and provide an unnecessary obstacle to the development of the country.

It is being proposed that there should be a full public debate and the requisite procedures invoked to amend the now controversial provisions.

Pre-Conditions

The need for constitutional reform cannot be disputed in light of the changing world environment and the local socio-political realities which a fundamentally different from those informing its conception.

It is also evident that those who are offending the present constitutional provisions are ineligible to participate in any parliamentary debate, ineligible to participate on any decisions on the topic, and ineligible to legislate any recommended amendments. The House of Representatives must be cleansed of all offending members prior to any such national debate.

Prior declaration of personal citizenship status by contributors--inside or outside the House-- to such a debate will alleviate speculation of vested self-interest masquerading as “principled” positions.

Contending Perspectives

There are number of perspectives being advanced with substantial supporting arguments. These can be arranged into three broad categories:

The Abolitionists argue that there should be no restrictions on anyone holding Jamaican citizenship from participating in the governance of Jamaica at any level.

The Nationalists argue that only Jamaican citizens should be allowed in Parliament. Consequently, the laws and regulations governing the process should be amended to read “citizen of the Jamaican state only” – or words to that effect.

The Fence Sitters argue that there is no need for any amendment to the constitutional provisions in question. However the nomination papers should require that the proposed candidate states that he is not a citizen of any non-commonwealth state.

Full 100%

It can be argued that there are certain positions within the administration of any independent nation-state which should be held by persons having undivided allegiance to the nation-state involved. These positions are of critical importance to the conduct of the nation’s interaction with the international community and of symbolic /emotional aspect of being an independent state – i.e. national identity.

Special care should be exercised in compiling such a listing; with due consideration being given to the technical capabilities required and the availability of the requisite expertise willing to fulfill the citizenship requirement. At the very minimum, there are certain critical positions which would necessitate undivided allegiance to a politically independent sovereign nation-state. As the nation-state matures, it is to be expected that the number of core positions filled by exclusively Jamaican citizens will increase--even without the legislative injunction.

The members of the Jamaican Diaspora have made, and continue to make, formidable contributions to the socio-economic development of

Jamaica

. There is no constitutional bar to their involvement at any level of the Jamaican society, except in critical governmental functions. If they wish to participate at that level, then they should simply renounce their acquired citizenship status and return to the 100% Jamaican status.

The Regulations need to be amended to ensure that each nominated individual affirms that he has no other citizenship than Jamaica. It is being contended that the amendment should not differentiate Jamaicans with dual citizenship by selecting the other type of citizenship that is allowed. It is either that we allow dual citizenship or disallow dual citizenship.

Politically, what is good for Jamaicans in the USA must be the same for those in the UK, Canada, Singapore, Kenya and also for those in Barbados, Cayman or

Cuba

The above may prove controversial; suffice it to say, the existing constitutional provisions may support that position – depending on the interpretation accorded by the courts.

Allegiance and Citizenship

2008-05-06T23:16:00.004-04:00

It can be argued that there are certain positions within the administration of any independent nation-state which should be held by people having undivided allegiance to the nation-state involved. These positions are of critical importance to the conduct of the nation's interaction with the international community, and symbolize the emotional aspect of being an independent state - that is, national identity.

The list includes, but is not limited to:
. Legislators - MPs and Senators (especially Prime Minister and Leader of the Opposition)
. Governor General
. Chief of the Defence Force
. Attorney General
. Solicitor-General
. President, Court of Appeal
. Chief Justice
. Members of the foreign service serving overseas.

People holding those positions should have allegiance to the host country only. They should possess exclusive citizenship during their tenure.

It matters not if they enjoyed multiple citizenships prior to consideration for the positions listed. However, they should renounce all other citizenships before they are elected or appointed to those special positions. Furthermore, your citizenship status at birth or as an adult should not matter, provided that you are exclusively undivided, undiluted in your allegiance to the country that you wish to serve.

In addition to renouncing any other citizenship before acceding to any of the positions listed, the Oath of Office should explicitly include (i) unequivocal voluntary renunciation of all other citizenships and (ii) acknowledgement of the exclusivity of the citizenship of the host country.

Jamaica today cannot afford to differentiate between Jamaicans with dual or even multiple citizenships. What is of paramount importance is the 100 per cent allegiance to Jamaica, a requirement when individuals occupy those critical positions. The constitution needs to be amended to reflect the current socio-economic political realities in clear, unambiguous terms.

Published in the Jamaica Observer on Wednesday, April 23, 2008.

BEYOND McCALLA – The Other Citizenships

2008-04-28T14:26:00.007-04:00

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.”

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.

Some attorneys-at-law currently sitting in our Parliament have vehemently opposed the interpretation and analysis advanced. It has become necessary to go into further detail about the constitutional position on the subject of “Commonwealth Citizen” as this is the base category (Section 39(a)) from which the composition of the Parliament is drawn.

The Constitution of Jamaica Section 9 (1) states:

“9.-(1) Every person who under the Constitution or any Act of Parliament is a citizen of Jamaica OR under any enactment for the time being in force in any country to which this section applies is a citizen of that country shall, by virtue of that citizenship, have the status of a Commonwealth citizen.”(emphasis added)

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).

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.

Still Not a Shackle

2008-04-27T11:54:00.008-04:00

On November 26, 2007 the Gleaner published an editorial entitled “When the Constitution is not a Shackle” addressing the reported calls for Stephen Vasciannie to withdraw his application to be appointed Solicitor General and the buzz about the plans by the Prime Minister to fire the members of the Public Services Commission (PSC).

Displaying apparent presentiment at the time, the editor encouraged Vasciannie and the PSC to seek the courts protection in the event that their recommendation of Vasciannie was rejected and/or they were fired. The stout assertion was made that “fundamental principles, particularly, the notion of the Constitution as the supreme law, are at stake”. Weeks later both incidents occurred.

Recently RJR reported in relation to the Daryl Vaz v Abe Dabdoub case that Prime Minister Bruce Golding is determined that Mr. Dabdoub will not gain entry to the House of Representatives by way of the courts. The following comments have been attributed to the Prime Minister:

“I'm not going to allow anybody to sit in Parliament who was rejected by the people at the polls purely on the basis of some legal or constitutional technicality”

This statement should be cause for concern among all. The Prime Minister plays no role in determining who sits in Parliament save for any part he plays in the selection of members of his own party to run as candidates. The maxim “Democracy is the government of the people, by the people, for the people” does not mean that anyone who is voted for by the people is entitled to be the people’s representative. If the candidate is not qualified to run, then he is not entitled to be the people’s representative.

The Constitution of Jamaica is the supreme law of Jamaica. All laws must be made in accordance with the Constitution; and to the extent that they are inconsistent the Constitution will prevail.

Decisions of the court in relation to all laws including Constitutional law must be obeyed. If one fears or anticipates that a decision will be unfavorable, one should not seek to prevent the applicant from exercising his right of appeal. To dismiss it as a “technicality”, suggests that it is meaningless, useless, not worthy of application but worthy of contempt.

Mr. Dabdoub has the legal right to appeal to the Court of Appeal of Jamaica. A threat to call general elections in the event Dabdoub files an appeal or succeeds in the Court of Appeal could be interpreted as an attempt to circumvent that process or to extinguish that right. While the Prime Minister has the right to call general elections, it was imprudent to wield it as a big stick to impose, threaten or deny others who wish to stand up for the rule of law.

More fundamentally, the Court of Appeal is the final court in matters relating to election petitions. Golding’s comments could be interpreted not only as prejudging the merits of the appeal but exerting undue influence over the Court of Appeal, especially in light of the growing chorus that a general election is the last thing Jamaica needs at this time.

In his inaugural address at the swearing in as Prime Minister Mr. Golding pledged to curtail the powers of the Executive and strengthen Parliament in his bid to create a framework for good governance. This is laudable; but if the Prime Minister is to be taken at his word and trusted as new and different, he must be seen to respect the laws of Jamaica. Any acts which are imposed based on the whim of one man without regard for the rule of law are liable to be viewed as acts of dictatorship or tyranny. For as the referenced Gleaner editorial asked:

“If the Constitution is not a shackle to prime ministerial (mis)behaviour, what then is sacrosanct under the law?”

Communication Error!

2008-04-20T14:16:00.011-04:00

Jamaica Gleaner Contributor, Martin Henry has written an interesting article entitled “Victory for the rule of law” published on Sunday, April 20, 2008. In his last paragraph Henry stated:

"A troubled citizen's concerns about the legitimacy of laws passed in the past with the participation of MPs who may have been in Daryl Vaz's dual-allegiance position was published as The Letter of the Day by The Gleaner last Wednesday [April 16]. Lawyer Dr Paul Ashley made a great deal out of the same issue when we both appeared on the TV programme Impact on that same day. The Constitution dissolves these fears in the wisely anticipatory provision of Section 51 (2): "The presence or participation of any person not entitled to be present or to participate in the proceedings of the House shall not invalidate those proceedings."

Interpreting legal provisions is an exercise fraught with dangers, especially if one is not acquainted with the rules governing interpretation. Without indulging in the rather laborious legalistic details, it is probably easier to make the following points:

The distinctions between a “person” and “Member” is critical as the “House” is not a place (not Gordon House), but an institution comprising duly elected (being suitably qualified) Members in the case of Parliament and duly appointed (being suitably qualified) Members in the case of the Senate.
The House must be properly constituted (as specifically outlined in the Constitution) before it can validly enact legislation, according to the procedures again outlined in the Constitution. For example there are provisions in respect of a quorum.
Moreover, interpretation employed must not make the Section inconsistent with other provisions of the Constitution.

Henry’s position, as stated on Impact, is that Parliament does not need to police itself, for that is the role of the Judiciary. That position is in stark contrast to his interpretation of the so-called “wisely anticipatory provision”. The literal interpretation as applied by Henry would give rise to some questionable conduct since "presence or participation" could cover a myriad of circumstances. For example:

There would be no basis for judicial review of anything done in the House.

There would be no basis for the court to declare anything emanating from the House as unconstitutional.

The 1990 attempted coup by the Jamaat al Muslimeen in Trinidad when the Parliament was invaded during its sitting and Members held hostage would be covered under this Section. (Trinidad has a similar provision in its constitution)

There would have been no need for the House to have passed “The Ministerial and Parliamentary Functions (Phyllis Mae Mitchell) Validation and Indemnity Act 2007”.

The fears are exacerbated in the current political reality where the government enjoys a slim majority. There is widespread speculation that the separation of those members holding valid US passports could have severe and profound consequences for that margin. The fears are also justified when, for the vast majority of offending Members, there are no triable issues. It is a question of fact – they do not have to await a court decision or discovery. Maybe it is time for “Victory for Integrity”.

Respectfully the esteemed Communications Consultant has made a communication error. It would have been prudent to consult before communicating.

Lessons for Parliamentarians

2008-04-19T22:22:00.004-04:00

There are numerous inescapable inferences from the ruling of McCalla C.J. in the Abraham Dabdoub/Daryl Vaz matter.

Lesson 1: Those Members of Parliament who are holders of valid US passports are in contravention of Section 40 (2)(a) and Section 41(1)(d) of the Constitution of Jamaica. If they had obtained the passport prior to Nomination Day, then they were not qualified to be elected. If they had obtained the passport after taking their seats, then those seats shall become vacant.

Lesson 2: If the action is properly brought before the Court and cogent admissible evidence is produced to substantiate the claims (at least the validity and use of the US passport), then the Court is likely to order a by-election.

Lesson 3: The underlying issue is not that of the possession of a US passport and its usage. Rather, the crux is the “declaration or acknowledge of allegiance or adherence to a foreign Power or State”. The possession and use of a passport issued by a foreign Power or State is only one of the many circumstances indicative of such allegiance or adherence.

Lesson 4: The learned Chief Justice confined her ruling to the specifics of the matter. There was no need to expound on the interpretation to be given to the phrase “foreign Power or State” since all parties agreed that the USA is a foreign Power or State. The Members of Parliament who are holders of dual Commonwealth citizenship should be equally concerned. It can be argued that “a foreign Power or State” as utilized by the Constitution of Jamaica means “any Power or State except Jamaica”.

Lesson 5: The ruling has similar consequences for the Senators. If they are in possession of valid US passports, then they are not qualified to be appointed as Senators. Being deemed Members of the Upper House, those in contravention should tender their resignation immediately. Furthermore, those holding passports issued by countries other than Jamaica should not wait on the courts to disqualify them.

Lesson 6: The Nomination Papers need to be amended to include a clause requiring the prospective candidate to affirm that he is “a citizen of Jamaica only” – or words to that effect. This will put every candidate on notice.

If the lessons from McCalla CJ. are learnt by the political directorate of both political parties, then the only issue which remains is “How to correct the situation?”

Correction

The offending Members of the House of Representatives fear public embarrassment and the revelation of their citizenship status resulting in the separation from their positions. The Prime Minister has the power to finesse the exercise by calling a General Election. Such would facilitate those wishing to renounce foreign citizenship status in the hope of regaining their position; also those wishing to hold on to their foreign accolades thereby forgoing election or appointment.

Voiding the Budget

2008-04-18T14:23:00.004-04:00

(Unedited Version)

The Budget Debate is a critical exercise in outlining the measures by which the Government intends to raise revenue to fund its programmes and the business of the bureaucracy. The bill is ultimately passed by the legislators thereby giving effect to the adage: “No taxation without representation.”

The principle is the rationale why many bills must originate in the Lower House (Parliament) where the people’s representatives have the sole authority to bring matters of taxation.

The Chief Justice of Jamaica has interpreted the Section of the Constitution of Jamaica dealing with those qualified to be elected or appointed to the House of Representatives. The ruling has the effect of deeming those Members of Parliament and Senators holding US passports ineligible to sit in the Parliament of Senate.

This has profound implications for the passage of the Budget as there are numerous Members on both sides of the aisle who are in this offending position.

Profound Questions

Can such offending Members morally or legally participate in this exercise, knowing fully well of their dual citizenship status?

Will a budget passed with the participation of persons not “fit and proper” to be sitting in the House of Representatives be constitutional?

Can those who continue to blatantly violate the Constitution by their very presence avoid legal contamination of any legislation emanating from such a tainted Parliament and Senate?

Cleanse First

Awaiting the Court’s ruling on individuals who as adults applied for and obtained US passports (and they themselves are relying on legal technicalities) cannot be considered appropriate in the Westminster/Whitehall model of government. The offending Members know themselves. The Prime Minister and the Leader of Opposition have a duty to know. The contamination cannot be tackled in a piece-meal fashion by holding a number of by-elections at court-determined intervals. Parliament and the Senate must be constituted in accordance with the provisions of the Constitution before any attempt to pass legislation. To do otherwise runs the risk of emanations being declared unconstitutional and void ab initio.

Why A General - the dual citizenship debate (Part 5)

2008-04-15T10:22:00.000-04:00

There has been a lot of public debate on the pros and cons of the Prime Minister calling a general election to solve the dual citizenship calamity in which the Government is now embroiled.

The circumstances are:

ØMembers on both sides of the aisle in the House of Parliament are said to be in possession of dual citizenship – particular valid US passports and have travelled on such since Nomination Day.

ØA number of election petitions regarding the qualification/disqualification of successful candidates are pending in the courts

ØSome Members of the House have taken steps in the revocation process; some have remained silent, hoping that their dual citizenship status cannot be proved via evidence admissible in a court of law.

The Prime Minister faces a political dilemma.

Ø Does he wait until the court actions have been exhausted?

Ø Does he enquire into the citizenship status of all JLP Members of Parliament?

Ø Does he play for time by calling a number of by-elections as the court determines?

Below are some of the considerations in favour of calling a general election as opposed to by-elections at court determined intervals.

ØThe constant mantra of Bruce Golding is in part an unswerving commitment to the Constitution of Jamaica and the rule of Law. It is therefore untenable for him to avoid ensuring that the Members of his team are properly and duly qualified to take their seats in the Parliament. This is not a matter of evidence, legal technicalities (such as proper service, time limitation et al.) or discovery by political adversaries.

ØIt makes little or no political sense opting for a by-election in which the JLP candidate was successful recently. It is only the JLP which will stand to lose what it already had. The PNP can only gain.

ØIf, as it is widely believed that the JLP’s election machinery is in a far better state than the PNP’s, then by opting for the general the JLP will stand a better chance of improving its slim majority.

ØTime is on the side of the PNP. Indeed if they are sincere in their protestations regarding a general election not being in the “best interest of the country,” then they should seriously consider announcing a boycott of any and all by-elections. That way there would be no contested election.

ØThe calling of general elections will obviate the public exposure of offending Members of Parliament. Some will renounce, others will elect not to run giving a myriad of public excuses. It matters not the reasons, so long as any future Parliament is properly constituted.

ØA set of rolling by-elections is time consuming, costly and facilitates political turmoil. This option is the bane of all investors – foreign and local. Of course some constituents would not mind a periodic injection of cash, especially in these hard economic times – a “buy” election if you will.

ØA general election would provide Bruce Golding with an opportunity to replace or retire some of those whose appointments were primarily rewards for long service, political loyalty or critical electoral assistance. In a sense it would be a “bye” election.

Election by Conspiracy

The view had been expressed[ by a no lesser person than a learned Queens Counsel] that there ought to be some agreement among the two major political parties that they would not contest any by-elections in order to oppose a Member of Parliament who has “dual citizenship” – read US citizenship.

Apparently, this agreement/understanding would be arrived at without public participation, probably at Vale Royal and foisted on the people.

That is fundamentally undemocratic and against the spirit and practice of modern day Constitutional rule. Furthermore, there is nothing to prevent other members of the wider public from contesting the by-election. Moreover that arrangement is based on the underlying assumption that the same two individuals would be the candidates in the up-coming by-election.

This ignores the fluidity of the partisan political reality – some will retire, others may opt out due to disenchantment or financial embarrassment and some may elect to hold on to that precious insurance – US citizenship.

Consequences of the Dual Citizenship Decision

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“It is abundantly clear that the Constitution does not confer on every Jamaican citizen the right to be elected as a Member of the House of Representatives.” per McCalla CJ. in Abraham Dabdoub v Daryl Vaz et al.

There have been calls to abolish the constitutional provisions which stipulate the requisite citizenship status of the Members of Parliament and Senators.

It is being mused that given the age of globalization and the significant financial importance of the Jamaican diaspora, the current provisions are obsolete, inimical to good governance and provide an unnecessary obstacle to the development of the country.

It is being proposed that there should be a full public debate and the requisite procedures invoked to amend the now controversial provisions.

A Pre-Condition

Contending Perspectives

There are number of perspectives being advanced with substantial supporting arguments. These can be arranged into three broad categories:

The Abolitionists argue that there should be no restrictions on anyone holding Jamaican citizenship from participating in the governance of Jamaica at any level.

The Nationalists argue that only Jamaican citizens should be allowed in Parliament. Consequently the laws and regulations governing the process should be amended to read “citizen of the Jamaican state only” – or words to that effect.

The Fence Sitters argue that there is no need for any amendment to the constitutional provisions in question. However the nomination papers should require that the proposed candidate states that he is not a citizen of any non-commonwealth state.

Full 100%

All three perspectives have some merit. The Jamaican Prime Minister and the Jamaican legislator should not have divided loyalties. They should be 100% Jamaican and unquestionably so.

The members of the Jamaican diaspora have made and continue to make formidable contributions to the socio-economic development of Jamaica. There is no constitutional bar to their involvement at any level of the Jamaican society except in critical governmental functions. If they wish to participate at that level, then they should simply renounce their acquired citizenship status and return to the 100% Jamaican status.

Politically, what is good for Jamaicans in the USA, must be the same for those in the UK, Canada, Singapore, Kenya and also for those in Barbados, Cayman or Cuba.

The above may prove controversial, suffice to say, the existing constitutional provisions may support that position – depending on the interpretation accorded by the courts.

Over to You Mr. Speaker - The dual citizenship debate (Part 4)

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The Chief Justice of Jamaica has handed down a definitive judgement on the interpretation to be given to section 40 (2)(a) of the Constitution of Jamaica. That judgement is on appeal. However, as it stands, there are very serious implications in respect of composition of the Parliament and the Senate.

Inescapable Inferences

The judgement has certain inescapable inferences:

It is an inescapable inference that any sitting Member of the House of Representatives in possession of a valid US passport is in violation of Section 41(d) and as such that seat shall become vacant.

It is an inescapable inference that any sitting member of the House of Representatives that as candidate in the elections who as an adult merely possessed and utilized a US passport (whether obtained fraudulently or not) was ineligible to be properly nominated. That assumes that the candidate did nothing to renounce his allegiance to that foreign State.

The Parliament

The Speaker has an overarching responsibility to ensure that the Parliament is at all times properly constituted and in harmony with the provisions regarding the composition, procedures and functions specified in the Constitution of Jamaica.

The Speaker of the House of Representatives can no longer ignore the fact that Members on both sides of the aisle are in possession of dual citizenship. Of course, the explanation may be advanced that he does not know this “as a fact” and such has not been officially brought to the attention of the Honourable House.

Well, in case the Members find it inconvenient to bring it to the attention of the Speaker because of the likely effect on both sides, then the Speaker cannot turn a blind eye to the Chief Justice’s ruling.

Action Not Bag -A- Mouth

The Speaker must now act: he must enquire into the citizenship status of each and every Member. This should be done within the full glare of the media with each Member answering in unequivocal terms. It is he people’s business.

Having obtained that information, the Speaker should ascertain from those admitting US citizenship whether they had a valid US passport on or after Nomination Day. This is critical because the operative date for qualification to be nominated as a candidate for elections to the House of Representatives is Nomination Day (Section 40(2)(a) applies to the circumstance). Furthermore, the seat will become vacant in certain circumstances mentioned in Section 41 (1) (d) –

“The seat of a member of either House shall become vacant …………….

It must be emphasized that Section 41(1)(d) contains the substance of the circumstances outlined in Section 40 (2) (a) and goes further when it outlines the intention informing the action taken.

Having obtained the citizenship status of each Member, the Speaker must then remove from the House those who have admitted that they are in possession of a valid US passport and/or have traveled on a valid US passport since being a Member of the House of Representatives.

The Speaker may also enquire into whether any Member had renounced his US citizenship prior to Nomination Day or after taking his seat in Parliament.

Concluding Remarks

Those who are given the awesome responsibility to make laws and impose taxation must ensure that they themselves are acting in accordance with the Constitution as it stands.

The Speaker ought to be aware that even his decisions can be subjected to judicial review. He cannot ignore the inescapable inferences of a binding judicial decision, irrespective of the widespread electoral consequences.

The President of the Senate is in a similar situation and the action required is substantially the same.

The politics of the country must be elevated to the professed higher level.

That Commonwealth Citizen - The dual citizenship debate(Part 3)

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Consternation:

Some amount of consternation has been generated by the treatment of “Commonwealth Citizens. Of particular concern is the concluding comment that:

“If an adult Jamaican citizen by virtue of his own act acquires the nationality of another state – be it Commonwealth or otherwise – he is disqualified. However an adult Commonwealth citizen living in Jamaica for a year satisfies the condition of Section 39 whether or not he acquires Jamaican citizenship.”

The consternation lies with adult Jamaican who have acquired citizenship of other Commonwealth countries – for example Britain, Canada, Barbados and Grenada to mention a few. Some have lived and studied in the respective territories and being duly qualified were successful in their application. Others found it necessary to take out some “insurance” in the heady days of the ideological 70’s. Indeed, there was the belief that citizenship in other Commonwealth territories meant that as a “Commonwealth Citizen” – albeit twice or even thrice over – one could still participate in the Parliament of Jamaica.

Further Agony:

We have advanced some of the arguments why Commonwealth states – other than Jamaica – are regarded as “foreign Powers or States” in terms of the Constitution of Jamaica.

The Constitution of Jamaica Section 9 (1) states:

Real Scenarios

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

For those holding dual Commonwealth citizenship status they have to contend with the definition of the disqualifying term “foreign Power or State” which is a term of art with a settled definition under International Law and have been utilized in numerous decided cases.

Indeed, it must be of top priority that those duly sworn to uphold the Constitution of Jamaica are in harmony with the provisions of the said Constitution. That the provisions were not rigorously enforced in the previous Parliament is no justification for their continued non-enforcement. The public spotlight must first be turned on those who hold the highest positions in the state – they are accountable to the People of Jamaica via the Constitution. That is the first step for any country purporting to adhere to the Rule of Law.

Dual But Unequal - The dual citizenship debate (Part 2)

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“Commonwealth” not “Foreign”

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
(a) 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.”

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.

CONCLUDING COMMENTS

To put the argument here being advanced into sharp relief: If an adult Jamaican citizen by virtue of his own act acquires the nationality of any other state – be it Commonwealth or otherwise – he is disqualified. However an adult Commonwealth citizen living in Jamaica for a year satisfies the condition of Section 39 whether or not he acquires Jamaican citizenship.

Whilst recognizing “dual citizenship”, not all such are treated equally in so far as the composition of Parliament is concerned. It depends to a large measure on how such foreign status was obtained – manner and timing. Is there a need for constitutional changes reflecting the new realities? That is another debate.

Dual But Unequal - The dual citizenship debate (Part 1)

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Introduction

Some Jamaicans enjoy the protection and privileges of being citizens of other countries. Most are citizens of Jamaica only. Indeed many with citizenship of more than one state – and even as many as two more – have played critical roles in the development of Jamaica. In reality the Jamaican state recognizes that Jamaican citizens may be citizens of other states but does not prescribe any limitations on the number.

However, the Constitution of Jamaica prescribes certain limitations on those enjoying multiple citizenship in so far as their participation in the Parliament. Such limitations – termed “qualification” and “disqualification” are specifically stated in Section 39 and Section 40 respectively.

Section 39

The individuals seeking membership in the Senate and House of Representatives must be (a) a Commonwealth citizen of at least 21 years old; and (b) has been ordinarily resident in Jamaica for twelve months prior to appointment to the Senate or nomination for election to the House of Representatives.

However the individual concerned must not fall within the disqualification clauses specified in Section 40.

Section 40

There are a number of conditions specified which would cause this adult Commonwealth citizen resident in Jamaica for the preceding twelve months to be disqualified from being appointed to the Senate or nominated for election to the House of Representatives. These include holding public office such as Judge of the Supreme Court, Judge of the Court of Appeal, member of a defence force; adjudged or otherwise declared bankrupt; certified insane; serving a sentence of six months or more; convicted of election related offence etc.

For the purposes of this discussion focus is confied to dual citizenship debate. Section 40 (2) states

“(2) No person shall be qualified to be appointed as a Senator or a Member of the House of Representatives who –

(a) is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State:”

ANALYSIS

 Section 9 gives meaning to the classification “Commonwealth Citizens”. Indeed such was deemed necessary in order to supplement the capabilities of the newly emerging sovereign state. The pool of expertise from the Commonwealth family was harnessed. Many of the officials of these ex-colonial territories hold British passports.

 The primary operative condition is “by virtue of this own act”. The individual must have been capable of doing the act and has chosen so to do. Moreover, that condition is not operative if it was occasioned by another, by operation of law, or by conditions outside the control/decision of the individual concerned.

 The condition outlined is not confined to the taking of an Oath of Allegiance – a necessary requirement of applications for citizenship. That acknowledgement of allegiance, obedience or adherence may be occasioned by membership in the defence force, holding important public office, national security or official representation roles.

 A “foreign Power or State” is any Power or State other than Jamaica. This construction is no doubt controversial although it is settled in International Law and appointed by a number of decided cases. The controversy is motivated primarily because it casts a wider net since it would include those who are holders of citizenship of Commonwealth states.