Monday, September 22, 2014
Another challenge to ShahineBY ERICA VIRTUE Sunday Observer writer email@example.com
THE Marcus Garvey People's Political Party (MGPPP) says it will be applying to the courts by Tuesday this week for a declaration to determine whether Shahine Robinson — who won the December 20 parliamentary by-election in St Ann North East — was 'stateless' when she was nominated on December 3 by the Jamaica Labour Party (JLP) to contest the election.
Michael Lorne, attorney-at-law and president of the party, which fielded part-time journalist Devon Evans to contest the election, said he wants evidence that Robinson had Jamaican citizenship at the time she was nominated.
"We are going to ask the courts to make a declaration on this question. 'Stateless' is the term that is used for a person with no nationality and a stateless person is not qualified to run in an election in Jamaica. You have to be a citizen of Jamaica," Lorne said on Friday.
"It is my view that for her to qualify for nomination on December 3, she would have to have renounced her United States citizenship and apply to be a naturalised Jamaican by Christmas 2009," he stated.
Lorne said the MGPPP would also be asking the courts for another declaration.
"We will also be asking for an injunction barring her from taking the Oath in Parliament until the courts make the declaration. It is clear that oaths don't mean anything to her," he said.
Lorne said Robinson — who first became member of parliament in 2001, beating the People's National Party's (PNP's) Carol Jackson after the resignation of Danny Melville — is not qualified to sit in the House of Representatives, because there is no evidence that she fulfilled all the legal requirements to have contested the seat. In the absence of that evidence, Lorne said, the courts must make the declaration under Jamaica's Nationality Act.
"The Act says the minister of justice may, at his discretion and in a prescribed manner, cause citizenship of Jamaica to be restored to any person who: (a) was a citizen of Jamaica by birth, descent or adoption; (b) renounced that citizenship, and (c) has made applications to the minister in prescribed manner for the restoration of that citizenship. You can't just renounce your American citizenship and say you're going to run, even if you were a citizen by birth," Lorne argued.
Robinson is one of four JLP MPs who were elected in the 2007 general elections but who, under the Jamaican Constitution, were deemed by the courts to have had citizenship that was not allowable at the time they were nominated.
The JLP won the general elections with 32 seats to the PNP's 28, but legal challenges to the legitimacy of the JLP began shortly after, when Abraham Dabdoub, who unsuccessfully contested the Portland West seat against Daryl Vaz, asked the court to rule Vaz ineligible for having United States citizenship at nomination.
The court agreed with Dabdoub, and in a precedent-setting ruling a by-election was ordered. However, the court did not agree with Dabdoub's argument that the seat was to go to the next duly nominated candidate with the highest number of votes.
Two other JLP MPs — Desmond Gregory Mair (North East St Catherine), and Michael Stern (North West Clarendon) — lost seats in similarly successful court challenges. Robinson was booted from the Parliament by the Court last December. However, they have all retained their seats in by-elections.
Robinson maintained that she was qualified to sit in the House after challenges to her legitimacy were raised by the PNP's Manley Bowen.
However, she offered no contest after information was released which proved her US citizenship beyond doubt.
According to Lorne, by taking the Oath of Allegiance to the United States, Robinson automatically renounced her Jamaican citizenship and in order to regain it, she must reapply under Section 9A for its restoration.
"And we are saying she has not done that and consequently she was stateless at the time and ought not to have been nominated," he insisted.
Director of Elections Orette Fisher said his office is not required to make a declaration of the citizenship of any candidate prior to nomination.
In fact, he said, it is impossible for that to be done.
"My office would not be able to determine citizenship on Nomination Day. In fact, it is a position that the office should not be asked to take, because what if I rule someone ineligible, deny him or her an opportunity to contest the elections, even though all the other requirements had been satisfied, then he takes me to court and wins. The elections would have already gone, and I would have already opened myself and my office to lawsuits," Fisher told Sunday Observer.
"That is not something I believe the office should be asked to do. That is the candidate's responsibility," he added.
Dabdoub, when contacted by the Sunday Observer, said he did not want to comment. However, in his challenge to Vaz's eligibility, he said a news release issued by then director of elections Danville Walker that Vaz was duly nominated served to mislead the constituents.
Fisher, however, supported his former boss, saying that given the requirements for candidates wishing to be nominated, all the candidates were duly nominated.
Attorney-at-law Nesta Clare Smith Hunter, who represented Robinson in court, did not respond to a request for an interview.
However, an attorney close to the case said the action being contemplated by Lorne is "nonsensical".
While acknowledging that his argument may find favour with a judge, he said Robinson did not lose her Jamaican citizenship in the act of acquiring United States citizenship.
"Our constitution does not allow our Government to pass any law to allow you to renounce your Jamaican citizenship," he said. "So what do I think of Mr Lorne's argument? Nonsensical."
He said one could only lose one's citizenship if a law was passed setting out the circumstances under which this could happen.
"The Americans have that provision in their law, and we have gone the other extreme and say that no person, who is a citizen of Jamaica by virtue of Section 3 shall be deprived of his citizenship. It is impossible to lose your Jamaican citizenship unless there is amendment to the Constitution and there is a law setting out the conditions under which you can lose it," the lawyer insisted.
Contacted for comment, JLP General Secretary Senator Aundre Franklin rubbished Lorne's position, saying it was tantamount to animal logic.
"Jamaicans derive citizenship primarily by birth. Jamaica recognises dual citizenship. Shahine Robinson was born in Jamaica and when she renounced her US citizenship, she automatically fell back on first base of Jamaican citizenship by birth," Franklin argued.
He said that that status is protected by the Jamaican Constitution and to say otherwise is illogical. He said the fundamental issue was not what was recognised by the United States, but what was recognised by Jamaica.
Robinson will, in another two weeks, know her fate regarding the $22-million in legal costs being sought by Bowen's attorneys following the ruling by the courts that she was ineligible to be nominated in August 2007 as a candidate in the September 3 general elections.
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