Questionable Conduct: The Jamaican Political Reality

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 in...

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 requ...

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. Publish at Scribd or explore others: Business & Legal notice of disqualifi allegiance to a fore

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 ...

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: Publish at Scribd or explore others:

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: Publish at Scribd or explore others: Law

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 w...

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 p...

(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 ...

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...

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: ...

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 for...