Wed | Nov 22, 2017

Editorial | Citizenship conundrum requires political fix

Published:Sunday | October 22, 2017 | 12:00 AM

A few, though influential, people have argued that Shane Alexis' eligibility to sit in Jamaica's parliament is a matter for the courts. Not least among them is Abe Dabdoub, whose challenge to Daryl Vaz a decade ago placed firm in people's consciousness the constitutional bar against persons who, "by virtue of their own act", are under "acknowledgement of allegiance, obedience or adherence to a foreign power or state".

This matter, however, has already been litigated and ruled upon by the Court of Appeal in the aftermath of the Vaz-Dabdoub electoral contest. What remains to be solved, as we have argued before, demands political, rather than legal, resolution, including new conceptual boundaries for the Jamaican state.

The issue at hand is that Dr Alexis, 38, the People's National Party's (PNP) candidate for the October 30 by-election for South East St Mary, is a Canadian, and, presumably, also Grenadian citizen. He is not a registered Jamaican, although he has lived most of his life here and is also married to a Jamaican.

 

Commonwealth citizenship

 

His family antecedents, which impact his Jamaican citizenship rights, remain hazy, but with regard to his possibly membership in the House, or Senate, that doesn't matter. Section 39 (a and b) qualifies him on the basis of his Commonwealth citizenship and having "ordinarily resided in Jamaica for the immediately preceding 12 months" before his nomination. Jamaica, Canada and Grenada are members of the Commonwealth.

The question about Dr Alexis' qualification rests primarily on two planks. One is that Section 39, having established the eligibility of a Commonwealth citizen, goes on to say, "and no other person shall be so qualified". Further, this section says that qualification is subject to the provisions of Section 40 - the one that bars candidates with allegiance to foreign powers.

It is suggested that the two sections are in conflict and that Section 39, with its "no other" proviso, shackles a person who is a Commonwealth citizen and at the same time a citizen of a "foreign power" as would have been the case with Mr Vaz, who held Jamaican and US citizenship. There is also the contention, argued by Mr Dabdoub, and others, that any state outside of Jamaica is foreign.

These matters were not the core of the Vaz-Dabdoub case that was argued before Chief Justice Zaila McCalla, who caused Mr Vaz to vacate his parliamentary seat which he regained after fixing his dual-citizenship problem. However, the centrality of Section 39 to qualifying people for membership was dealt with at the Court of Appeal before Justices Smith, Panton and Harrison.

The effect of the section was dealt with most fulsomely by Justice Smith when addressing the argument by Jalil Dabdoub, Abe Dabdoub's attorney, that it limits membership to Commonwealth citizens only - presumably excluding 'foreign' persons, even if they had not, "by their own act", done anything to be under obedience of a foreign power.

Said Justice Smith: "Mr Braham (Vaz's lawyer), on the other hand, submits, correctly in my view, that 'no other person' means a person who does not have Commonwealth citizen status." That line of reasoning clearly rules in Dr Alexis.

Justice Harrison acknowledged Section 39 as prescribing "the primary qualification" for membership to the legislature, without, like his brother judges, registering, even as obiter, a potential constitutional conflict between that and other sections of the Constitution.

 

Explicit Intent of the Constitution

 

The explicit intent of the framers of the Constitution, even if it is come to be shown as ridiculous, was highlighted by the court's then president, Seymour Panton: People who voluntarily acknowledge allegiance to a non-Commonwealth country can't be members of Parliament.

"If they choose a distant autocratic, unfriendly Commonwealth country for citizenship status, they can still serve in the House of Representatives," Justice Panton observed. "If they, however, choose to acquire such status in the United States of America, their friendly accommodating neighbour to the north, they are disqualified."

That seems "an oddity", he said, but "that is the Constitution". Which brings us back to the political fix. That this issue has loomed large for a second time in a decade underlines the need for a full review of these deeply entrenched constitutional clauses and how to define Jamaica beyond the insular state and embracing of its diaspora.