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
Posts
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 Ho...
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...
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, sh...
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] Publish at Scribd or explore others: Wills and Trusts Business & Legal dual citizenship jamaican constitutio
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
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...
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 ...
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 Labo...
(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...
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 t...