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Citizenship status and that eligibility issue …yet again

BY BRUCE GOLDING

Sunday, October 15, 2017

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Despite the ruling handed down in 2008 by the learned Chief Justice in the election petition that unseated Mr Daryl Vaz, the issue of the eligibility for election to Parliament of persons with other nationalities appears not to have been settled.

Attorney-at-Law Mr Abe Dabdoub, who was himself the petitioner in that case, suggests that the eligibility of Dr Shane Alexis should be determined by the Court, implying that there are points of law to be argued. It seems to be more than just a moral issue as Mr Vaz has claimed.

Section 39 of the Constitution, which sets out the qualifications for membership in Parliament, does not require the candidate to even be a Jamaican citizen. It simply states that he or she must be a Commonwealth citizen at least 21 years of age who has been resident in Jamaica for the immediately preceding 12 months. On that score alone Dr Alexis' eligibility could not be questioned.

However, section 40 disqualifies any person who “is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state”. Does that reference to “foreign power or state” include Commonwealth countries? Implicit in being a citizen of a Commonwealth country other than Jamaica is allegiance to that country. The two provisions appear to be in conflict.

The question, it seems to me, is whether such allegiance is immunised from disqualification purely on the basis of being a Commonwealth citizen or whether such immunity exists only if the allegiance did not arise “by virtue of his own act”. Mr Dabdoub seems to suggest that the latter is the case.

It must be noted that the provision in section 39 granting eligibility to Commonwealth citizens is expressly made subject to the disqualification provisions of section 40. What clearly must be the determining factor is the question as to what constitutes a foreign state, allegiance to which attracts disqualification.

Mr Dabdoub contends that under the Constitution every country outside of Jamaica, including Commonwealth countries, is a foreign state. I am not a lawyer but, as one who has had more than a passing acquaintance with the Constitution, I believe that this argument is not without merit.

Chapter 2 of the Constitution, which deals with citizenship, states in section 12 that in this Chapter (my emphasis) a “foreign country means a country (other than the Republic of Ireland) that is not part of the Commonwealth”. The provisions relating to qualification for membership of Parliament are contained in Chapter 5 but no such definition appears in that Chapter. Nor does any appear in Chapter 1 which provides definitions for terms that are applicable wherever those terms appear in the Constitution.

The matter becomes intriguing when we examine the provision in section 26(5) of Chapter 3 for the declaration of a state of emergency “as a result of the imminence of a state of war between Jamaica and a foreign state”. It certainly could not be that “foreign state” here excludes Commonwealth countries and that we are precluded from declaring a state of emergency if Jamaica found itself at war with another Commonwealth country (as has happened between India and Pakistan).

The Chief Justice in 2008 could only rule on the specific issues that were placed before her and the question of Commonwealth citizenship was not one of them since it did not arise in that case, but her decision and the reasoning she provided are relevant, if not instructive:

“The evidence establishes that the first respondent (Vaz) is a dual citizen of the United States of America and Jamaica who acquired his United States citizenship at birth and is the holder of a valid United States passport which he himself has maintained, renewed and used for travel to various countries noted in it before and after his nomination. On several occasions he presented himself to Immigration authorities as being an American citizen and when he did so he understood his obligations as such.

“The evidence shows that the first respondent's mother applied for his first passport as a child but as an adult the first respondent took active steps to renew, maintain and travel on his passport and thereby obtained the benefits of travelling as an American citizen.

“If he had not renewed his passport but nevertheless retained his American citizenship, in such a case there could have been no doubt that he had obtained American citizenship involuntarily and no question of disqualification could have arisen. Had he not renewed and travelled on his United States passport, it could not have been argued that he was under any acknowledgement of allegiance to the United States of America by virtue of his own act.

“It is not the owing of allegiance to the United States of America by virtue of being a citizen of that country that is a ground for disqualification from sitting in the House of Representatives but rather the voluntary taking of steps to acknowledge that citizenship that causes the disqualification.

“There is no prohibition of dual citizens who obtained that status involuntarily from sitting in Parliament, but if such a citizen, by his own act, is under any acknowledgement of obedience or adherence to a foreign power, he is disqualified from so doing.”

The Australian Constitution (section 34) allows for election to its Parliament a person who is “a subject of the Queen, either natural-born or for at least five years naturalised under a law of the United Kingdom or of a Colony which has become or becomes a State….”. But, like our Constitution, it prohibits any person, without the “by virtue of his own act” proviso, who “is under any acknowledgement of allegiance, obedience or adherence to a foreign power or is a subject or a citizen or entitled to the rights and privileges of a subject or citizen of a foreign power” (section 44).

The question as to whether British citizenship provides exemption from this prohibition by virtue of section 34 was tested in the Australian courts and the decision was cited by our Chief Justice in her ruling in the Vaz case:

“In Sue v Hill (1999) 199 CLR 462, a Senator who was an Australian citizen but was also a citizen of the United Kingdom by birth had, as an adult, renewed her United Kingdom passport which was current at the time of her election and nomination. It was held that she was disqualified on the basis that her renewal of the passport was an acknowledgement of allegiance to the United Kingdom.”

On the basis of that ruling, and if Mr Dabdoub's contention is correct, the question may well be whether, as an adult, Dr Alexis has “maintained, renewed and used for travel” his Canadian passport, presenting himself as a Canadian citizen, enjoying the benefits and privileges accorded to Canadian citizens and, therefore, is under an acknowledgement of allegiance to Canada. Dr Alexis is 38 years old and, presumably, has, as an adult, travelled on and renewed his Canadian passport which, under Canadian law, must be renewed at least every 10 years.

Dr Alexis' exact circumstances remain puzzling. By his own account he was born in Canada while his mother was a student there but he migrated to Jamaica when he was only two years old. It is reported that his father is a Jamaican. Section 3C of the Constitution provides that every person born outside of Jamaica since Independence shall become a Jamaican citizen on the date of his birth (my emphasis) if, at that date, his father or mother is a citizen of Jamaica. On this basis and unless his father was not a Jamaican citizen at the time of his birth, Dr Alexis is a Jamaican citizen and has been so since the day he was born.

There is no requirement for him to apply for anything. To obtain a Jamaican passport he would simply be required to produce his Canadian birth certificate and proof that his father is a Jamaican citizen. Why then is he now in the process, as he said on radio last week, of applying for Jamaican citizenship and being required to produce evidence of tax compliance and company registration? It doesn't add up.

The controversy surrounding persons with allegiance to countries other than Jamaica and whether they should be eligible for election to Parliament has persisted for the last 10 years. It needs to be resolved, but only after careful thought and enlightened discussion. One approach would be to make it clear beyond any doubt, as is the case in many countries, that only Jamaican citizens with no other nationality can sit in Parliament. There is a compelling argument against allowing persons from any of the 51 other Commonwealth countries to be eligible for Parliament after residing in Jamaica for only 12 months. Such a change would require amending section 39 of the Constitution, a deeply entrenched section, that can be amended only by way of a referendum.

An opposite approach would be to remove the disqualification in section 40 concerning acknowledgement of allegiance to a foreign power. This would remove the impediment that Daryl Vaz, Gregory Mair, Shahine Robinson, Michael Stern and Everald Warmington had to overcome and which Shane Alexis may yet have to confront. Such an amendment could be done by a simple majority in Parliament but we would first have to decide whether we are prepared to cast aside the notion that our legislators should owe allegiance to no country other than Jamaica.

A third approach, which is a compromise between the first two, would be to require persons seeking election to Parliament to be Jamaican citizens without prohibiting those who hold dual citizenship. This would require amendment to both sections 39 and 40.

The choice is not cut and dried. I am certainly opposed to the current situation that allows or purports to allow someone from the UK, Australia, Cyprus, Pakistan, Zimbabwe or Bangladesh who has no lasting ties to Jamaica to be eligible to sit in our Parliament only by virtue of having lived here for 12 months. At the same time, however, we must be careful not to allow our nationalistic fervour to be so inflexible that we exclude from parliamentary service Jamaicans who may have been born here, spent most of their lives here and have a positive contribution to make but, through any of a variety of circumstances, hold dual citizenship.

There is a vast number of Jamaicans in the Diaspora who have acquired citizenship there because they found it necessary or advantageous to do so. Many are as deeply committed to Jamaica as Dr Alexis or any of us and may be willing to offer themselves for elected office, but having to renounce their other nationality may amount to an unbearable sacrifice not just for them but for their families in terms of the benefits to which they would no longer be entitled. It would not be so harsh a demand if renunciation was required only prior to being sworn in. As it is now, a person who renounces his foreign citizenship in order to be nominated but is unsuccessful at the polls loses not only the opportunity to serve in Parliament but his dual citizenship as well.

It is interesting that Jamaicans who acquire US citizenship can run for the US House of Representatives after seven years and the US Senate after nine years, and although in acquiring US citizenship they are required to renounce their allegiance to any other state, that renunciation is not recognised in Jamaican law and they remain Jamaican citizens because under the Constitution they cannot be deprived of their Jamaican citizenship.

I had long ago advocated that in the enlargement of the Senate, to which there is already bi-partisan agreement, two seats should be reserved for representatives of the Jamaican Diaspora to be appointed by the Governor-General who would, no doubt, consult with the recognised Diaspora organisations in making his selection.

I note with interest that in addressing the National Association of Jamaican and Supportive Organizations (NAJASO) in July, Opposition Leader Dr Peter Phillips called for a change in the Constitution to allow Jamaicans with US citizenship to sit in Parliament. “That's a relic of the world of 1962 and, quite frankly, it needs to be adjusted but it requires a national discourse here”, he is quoted as saying. I agree with him, notwithstanding that his party successfully challenged the election of Daryl Vaz, et al in 2007 based on this “relic”.

But since that relic has not yet been removed, it seems to me that his own candidate in South East St Mary may now be facing the same dilemma. That would be a real pity because, like his opponent Dr Norman Dunn, he seems to be an eminently suitable candidate for parliamentary representation.

— Bruce Golding is a former Prime Minister of Jamaica and Member of Parliament.

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