The Court of Appeal has said, in its very detailed reasons for upholding the ruling that there should be a by-election in the West Portland constituency, that the "electorate are not to have imposed upon them a person for whom the majority of them did not cast their votes".

In the 82-page judgement, the court said yesterday that there was precedent for arriving at its decision on February 27 and referred to the 1977 election case of Stephen Mattison v John Junor, which was decided by the distinguished jurist, retired chief justice Kenneth Smith.

"I have no hesitation in saying that Smith, C.J., has, in Mattison vs Junor, stated the position that applies in Jamaica.

People's National Party candidate, Abe Dabdoub, filed an election petition after the September 3, 2007, general election, contending that Member of Parliament (MP) Daryl Vaz had dual citizenship and was not entitled to be an MP.

Chief Justice Zaila McCalla heard the election petition and ruled that because Vaz, who had inherited American citizenship from his mother, obtained a US passport as an adult and travelled on it, he had pledged allegiance to a foreign power.

The chief justice ruled that Vaz was not eligible to sit in Parliament and ordered a by-election.

Dabdoub appealed, saying that the chief justice had erred, because she should have awarded the seat to him, since, he was the only duly nominated candidate.

The Court of Appeal, comprising its president, Seymour Panton, Justice Algernon Smith and Justice Karl Harrison, on February 27, upheld the chief justice's ruling.

Mattison vs Junor case

Panton, in his judgement, said that retired Chief Justice Smith in the Mattison vs Junor case proceeded to address the question of whether the electors in the Boroughbridge division, St Ann, had been given due notice that John Junor had been disqualified from being elected as a councillor. Mattison's petition bore no allegation or statement that there had been such a notice and then chief justice concluded that there had not been sufficient notice.

Justice Panton pointed out that Smith concluded that "the overriding principle must be that the electorate are not to have imposed upon them a person for whom the majority of them did not cast their votes".

In referring to the case of Dabdoub and Vaz, Justice Panton said there was notice to electors, "the number being uncertain", that Vaz had dual citizenship and that their votes would be thrown away.

Justice Panton emphasised that after Dabdoub issued the notices, then director of elections, Danville Walker, issued press releases that all the candidates had been properly nominated.

Panton said further in his written reasons that "in a country where political posturing takes pride of place among politicians and their supporters, it is not inconceivable that the majority of the electors, even if they were aware of Mr Dabdoub's notice, would have accepted the rebutting notices from the electoral body as gospel".

Dabdoub's lawyer, Gayle Nelson, is purported to have given a legal opinion in respect of Vaz's acknowledgement of allegiance to the United States of America.

Justice Panton said: "With respect, the opinion was of absolutely no worth to the electors of West Portland, for the simple reason that Mr Nelson has no known expertise in American law."

barbara.gayle@gleanerjm.com