Tomorrow is the day when, as the Greek Delphic oracle would have safely predicted, a great electoral victory will be won in West Portland and a great defeat will be sustained.

But a greater victory has already been won and a greater defeat sustained. The victory is for the rule of law and for the Constitution of Jamaica. The defeat is the view that the dual-citizenship issue is much ado about nothing and the 'absurdity' of Section 40 of the Constitution should just be quietly ignored in a conspiracy against the law by agreement of all concerned.

The relevant subsection of Section 40 reads: "No person shall be qualified for election as a member of the House of Representatives who ... is by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state."

The chief justice of the Supreme Court has handed down a comprehensive 53-page ruling in accessible language - posted on the Internet - removing Daryl Vaz from the House of Representatives as member of parliament for West Portland, refusing Abraham Dabdoub the seat by default, and thereby creating the necessity for tomorrow's by-election.

The Court of Appeal has concurred, as do citizens like me, zealous for the preservation of the rule of law and specifically for upholding the Constitution, the foundational law of the land in all its particulars and handing constitutional power to citizens where it rightly belongs and not to political parties.

And, some of us are quite delighted over the chastening of the political parties which the ruling implied. Political parties are not even recognised by the Constitution but have grown too big for their britches.

Basic law

Ignorance of the basic law by lawmakers in the legislature is worrying. But even more worrying is their willingness to ignore the law. The precedence ruling in the Dabdoub-Vaz case has made it abundantly clear that certain other members of the House of Representatives do not belong there on the same grounds and should forthwith vacate the legislature without awaiting any further court hearings. That they will not budge and are not ejected by their political parties speaks volume about regard for the rule of law among lawmakers.

The supreme function of the judiciary is to uphold the law of the land, the Supreme Court being in particular charged to defend the Constitution, including overturning laws passed by Parliament which conflict with the Constitution.

"The main issue before this court for determination," Chief Justice McCalla noted, " is whether or not having regard to Section 40(2))(a) of the Jamaican Constitution the first respondent (Daryl Vaz) is qualified to be elected to the House of Representatives.

"The petitioner (Abraham Dabdoub) contends that the first respondent is not so qualified as he is a citizen of the United States of America, a foreign power, and is under an acknowledgement of allegiance, obedience or adherence to that country having applied for, renewed and travelled on his United States passport to various countries noted in it before and after his nomination. The petitioner is also contending that as the first respondent is not qualified to sit in the House of Representatives votes cast for him have been wasted or thrown away and the petitioner is entitled to be returned to the House of Representatives as the duly elected Member of Parliament for West Portland."

After a tour de force of summing-up arguments, reviewing precedent cases, and delivering potent legal reasoning, Madam Chief Justice delivered a four-point conclusion: "I find as follows," she said in three of the points:

(1) "The first respondent (Daryl Vaz) on Nomination Day ... was not qualified to be elected to the House of Representatives ... .

(2) "His nomination on that day is invalid, null and void and of no legal effect. He was not duly returned or elected as a Member of the House of Representatives and I am obliged to certify to the Speaker of the House of Representatives.

(3) "The petitioner is not entitled to be returned as the duly elected Member of the House of Representatives for the constituency and his claim for an order that he be returned as such is refused."

Right to choose

The heart of the reasoning on point (3) was the right of electors to choose their representative without the confusion and uncertainty surrounding the claims and counterclaims of Vaz's nomination. Cheers for parliamentary democracy and the power of the citizen/voter, neither of which must be subordinated to political party interests.

The rule of law has once again been upheld in Jamaica. What do we mean by the rule of law? As I browsed the Internet for a crisp, clear formulation, this gem turned up from the jurisdiction of our Commonwealth sister country, Canada:

"A cornerstone of our system of Government," the document says, "is the rule of law. It means that everyone is subject to the law; that no one, no matter how important or powerful, is above the law - not the government; not the prime minister, or any other minister; not the Queen or the governor general; not the most powerful bureaucrat; not the armed forces; not Parliament itself. None of these has any powers except those given to it by law: by the Constitution Act, or its amendments; by a law passed by Parliament; or by the common law of England, which we inherited, and which, though enormously modified by our own Parliament, remains the basis of our constitutional law and our criminal law, and the civil law.

"If anyone were above the law, none of our liberties would be safe.

"What keeps the various authorities from getting above the law, doing things the law forbids, exercising powers the law has not given them?

"The courts. If they try anything of the sort, they will be brought up short by the courts."

"In his book The Morality of Law," another source says, "American legal scholar Lon Fuller identified eight elements of law which have been recognised as necessary for a society aspiring to institute the rule of law.

Eight elements of law

1. "(The) laws should be obeyed by all, including government officials.

2. "Laws must be published.

3. "Laws must be prospective in nature so that the effect of the law may only take place after the law has been passed.

4. "Laws should be written with reasonable clarity to avoid unfair enforcement.

5. "Laws must avoid contradictions.

6. "Laws must not command the impossible.

7. "Laws must stay constant through time to allow the formalisation of rules; however, laws also must allow for timely revision when the underlying social and political circumstances have changed.

8. "Official action should be consistent with the declared rule.

Our highest courts have defended these hallowed principles in the West Portland case, against the wishes of the political parties, and their members in the legislature and the executive of government.

Martin Henry is a communications consultant who may be reached at medhen@gmail.com or columns@gleanerjm.com.