A.J. Nicholson, Contributor
Nicholson - File
With reference to the Public Affairs article by Ken Jones in The Sunday Gleaner of September 16 concerning constitutional disqualification for parliament, the People's National Party (PNP) has so far refrained from making any official statement on the issue before the courts concerning the possibility of disqualification of certain persons elected to serve in our Parliament.
This has been due to our concern that there should be no appearance of attempting to influence the judicial process.
Unfortunately, a number of persons have seen fit to offer tendentious comments on this issue based in many cases on a mis-interpretation of the constitutional provisions and an apparent wish to suggest that this is just a political storm in a partisan teacup.
We, therefore, consider it necessary to now explain the precise nature of the constitutional position as we understand it and the reasons why it is important that these legal actions should be pursued in the appropriate forum, namely, the courts. We do not believe that the enforcement of our Constitution and the observance of the rule of law should be cause for either internal destabilisation or external disquiet.
Liberal provisions
First of all, let it be clearly understood that no one is contending, and the Constitution does not provide, that the possession of dual citizenship, by itself, is a bar to being elected to the House of Representatives or appointed to the Senate.
On the contrary, our Constitution is extremely liberal in this regard and had been so long before 'globalisation' became a phenomenon and a cliché.
Section 39 of the Constitution sets out the basic qualifications - namely, being a 'Commonwealth citizen' and resident in Jamaica for the preceding 12 months.
Commonwealth citizen is defined to include not only a citizen of Jamaica but a citizen of any member country in the British Commonwealth (Section 9 of the Constitution). It was by virtue of this that Sir Frank Worrell was legitimately appointed to the Senate because he was born in Barbados but resident at the material time in Jamaica. There was no breach of the Constitution as suggested by Mr. Jones in his article in last Sunday's Gleaner.
This wide category of potential legislators is, however, subject to Section 40 which specifies a number of factors that may disqualify a citizen from election or appointment to the Senate.
Examples of these are persons involved in the electoral process itself as employees, persons who hold public offices in the government, members of the judiciary, persons who have contracts with the government, undischarged bankrupts and persons serving terms of imprisonment. These are obvious standard disqualifications which are widely recognised.
The disqualification provision which grounds the cases for adjudication by the courts is to be found in Section 40(2) (a). This provides that no person shall be qualified to be appointed as Senator or elected to the House of Representatives who "is BY VIRTUE OF HIS OWN ACT under any acknowledgement, allegiance, obedience or adherence to a foreign power or state".
The qualifying words of this provision - "by virtue of his own act" - are of critical importance. Their effect is that a person, who happens to have been born in a foreign country and thereby acquired the foreign citizenship, even though his parents are Jamaican citizens, is not, by this mere fact of birth, prohibited from being elected or appointed to Parliament. A person is not responsible for the location in which he or she was born.
In order for the disqualification to exist, there has to be some act by the person himself, or done by someone on his behalf and adopted by him, that amounts to an acknowledgement of allegiance to the other country. This takes place when a legally competent person, deliberately and voluntarily, applies for naturalisation as a citizen of another country or adopts and accepts such an application by someone else.
Intermediate situations
In between these two extreme situations of merely being born in a foreign country, on the one hand and deliberately and consciously applying for naturalisation on the other hand, there are a number of intermediate situations which may be held to fall on one side or the other of the dividing line between the two extremes. The decisions in respect of these intermediate cases are most appropriately made by the courts in each particular case.
It is of critical importance that we bear in mind that the other words in this section - allegiance, obedience, etc. - indicate that the section is not intended to cover mere residence in a foreign country, however long that may be, or the possession of a green card, work permit or similar document that implies nothing more than a particular permission granted by a foreign country.
It follows, therefore, that the large number of persons who for one reason or another are the holders of such documents are not made subject to the disqualification.
Are these constitutional provisions either unique to Jamaica or forced upon us by the Colonial Office at the time of Independence, as one commentator has suggested? The answer is: absolutely not.
There is no country in the world, including the United Kingdom, that does not have in some form, or to some degree, legal barriers that prevent persons who have made themselves subject to allegiance to a foreign country from being elected to the legislature. This disqualification is of signal importance in respect of countries which have the system of Parliamentary government that we do.
As we know, the legislature in our system is the source from which the Cabinet, which controls the executive, is selected. The legislature, therefore, is not only responsible for passing the laws of the country but is the source from which those who implement those laws are derived. It is, therefore, of the most fundamental importance that we should scrupulously observe those provisions of the constitution which seek to prevent our Parliament from having in its membership persons whose allegiance is not wholeheartedly directed, both factually and legally, to our country.
The Constitution is not a secret document. Neither can it be regarded as mere words that can be ignored whenever it appears that enforcement may create inconvenience and embarrassment. It is the Constitution that validates and confers authority on our system of parliamentary government.
It is simply not true to say, as has been suggested by one commentator, that Section 40(2) (a) has been ignored in the past. This suggestion by Mr. Jones in his article already mentioned is not supported by any of the examples that he cites. The case of Sir Frank Worrell has already been mentioned. The other examples given, such as Dudley Thompson or Hector Wynter, are equally beside the point since these were persons whose dual citizenship was due solely to the accident of their being born in a foreign country and, as explained above, that does not invoke the disqualification.
In any event, of course, even if past transgressions have been over-sighted or ignored, it does not mean we are entitled to treat a fundamental constitutional provision as non-existent because it may produce an embarrassing result.
The point has also been made that it would be much better if these issues of qualification were determined prior to the election taking place and not after the event. This is obviously true, but who is to blame for the timing of possible disclosures of disqualifications?
Persons who put themselves forward as candidates for elected office obviously owe an obligation to determine if they are legally qualified to do so. It is equally, if not even more imperative, that political parties who put forward candidates to represent them in national elections owe an obligation to the country to see to it that the candidates they put forward are technically qualified. It is only the political party itself which can know for sure, prior to Nomination Day, who are the candidates they propose to nominate.
Ascertain status
There is surely an obligation, therefore, on the political parties to ascertain the status of their candidates prior to nominating them. In the event that any certainty or even reasonable probability of disqualification is discovered in respect of the particular provision in question the potential candidate can either be withdrawn or required to renounce the foreign citizenship.
What is not permissible or morally acceptable is for the party, with full knowledge of the possible or probable disqualification, to do nothing and let the nomination go through in the hope that the breach of the constitution will not be detected.
We would, therefore, suggest in the light of the current situation that the Jamaica Labour Party (JLP) owes it to the country to say clearly and frankly whether it did take steps to satisfy itself as to the constitutional qualification of all its candidates; what was the result of such inquiries as were made; and what, if anything, they thought it was necessary to do.
We heard a lot from the leader of the JLP both before and after the elections of his commitment to better 'governance'. Surely letting the country know the answer to these questions stated above would seem to fall within the requirements of acceptable governance.
A.J. Nicholson is former Attorney General and is, at present, legal advisor to the People's National Party.
