Dual citizenship, Parliament and the court

Peter-John Gordon, Contributor

The Sunday Gleaner of November 13, 2011 carried a story titled 'Scrap it! Braham wants key dual-citizenship provision axed', which reported on comments made by Attorney General Ransford Braham, in his private capacity, at a forum held at the Norman Manley Law School on Wednesday, November 9. I was present at that forum and, therefore, my comments are not restricted to the story carried in The Sunday Gleaner, but to Mr Braham's entire presentation.

Mr Braham lamented the fact that "under common law, if citizens are notified of the dual-citizenship status of one of the candidates before voting, and if that status later disqualifies the winner, citizens who vote are considered as having thrown their votes away".

He went on to say that "the case of Abe Dabdoub v Daryl Vaz in the 2007 general election set the precedent for by-elections in four dual-citizenship cases". Is this a precedent for all future dual-citizenship cases, or did the court merely rule on the particular issues before it? Did the court give any consideration to the fact that the director of elections' statement might have raised confusion in the minds of the electorate as to the qualification of Mr Vaz to offer himself as a candidate?

An interesting question which we, the public, certainly would like answered is, if Mr Danville Walker, the then director of elections, had not made the statement that all nominated candidates were qualified, would the court have prescribed differently? It matters little whether Mr Walker was speaking on his own behalf or, as Mr Braham suggests, on behalf of the Electoral Office of Jamaica. That distinction would be pertinent only for issues as to Mr Walker's motives, not to the correctness or incorrectness of his statement and the implications of that statement on the electorate.

Flawed marriage analogy

Mr Braham claimed that the court erred in its finding that the renewal a foreign passport by an adult is an acknowledgement of being under allegiance, obedience or adherence to a foreign power by virtue of one's own act. His argument is that Mr Vaz added nothing to his status by the renewal of his passport.

Mr Braham used as an analogy persons being married abroad and then getting married in Jamaica, claiming that the second marriage added nothing. Maybe the confusion arises in thinking that a passport is renewed. It is not. A passport expires and an application is made for a new passport.

Mr Braham's marriage analogy would only have made sense if marriage licences were time-bound, and the second marriage occurs after the first had expired. What if the first marriage was arranged by parents when the couple were underage and the second took place when the couple were adults? Would Mr Braham see a qualitative difference between these two marriages?

The Jamaican law says that a person is not responsible for issues of citizenship when that person is a minor, so a person's parents applying for a foreign passport for him is not held against him. However, when that person becomes an adult, the process of applying for a foreign passport is an act of claiming for himself the rights, privileges, protection and obligations confirmed by a foreign power on its citizens.

An ecclesiastical parallel would be infant baptism, where promises are made on behalf of an infant by parents and godparents, which are later affirmed when the infant becomes of age through confirmation.

Breaking single citizenship

Mr Braham pointed out the discriminatory treatment of Commonwealth versus non-Commonwealth citizenship for purposes of the dual-citizenship issue in Jamaica. I agree with Mr Braham that this discrimination should be removed. I, however, disagree with him in terms of the direction which should be followed in removing it. I propose that all members of parliament be citizens of Jamaica only.

The primary function of a member of parliament is to be a legislator. It is highly offensive that there should be persons making law which prescribe how the rest of us and our children should live, when they and their children are under no obligation to abide by these laws - they can easily exercise the right to subject themselves to the laws of another country. Having legislators who are forced to swim or sink with the rest of us is more likely to focus the minds of the legislators in designing good laws.

A second reason why only persons who are citizens of Jamaica alone should be allowed to enter Parliament is that the executive branch of government is selected from among parliamentarians. Ministers of government, from time to time, have to negotiate on behalf of the country, whether these ministers are assigned the portfolios of foreign affairs, national security, defence, finance or any other ministry. It is not beyond the realm of the possible that the threat of revocation of a minister's foreign citizenship might be used to extract terms and conditions not in the best interest of Jamaica.

The court ruling in the Dabdoub v Vaz case greatly limited the liability which a person faces for electoral misconduct. Merely ordering that the election be declared null and void sets the stage for strategic actions by candidates in the future with grave consequences for the Jamaican taxpayers. By-elections are expensive.

open to exploitation

The court's ruling makes the following scenario possible. Suppose there are two candidates for a parliamentary seat, both of whom are ineligible by virtue of the dual-citizen clause. The election is held and one is declared a victor. A constituent challenges the result of the poll, so a by-election is required. The losing candidate is unlikely to run again since he knows that he does not command the public sentiment. He withdraws with his foreign citizenship intact. The disqualified winner, having tested the waters, is now willing to renounce his foreign citizenship and run again. Had he lost, he would have had no reason to make the unreserved commitment to Jamaica. The taxpayers must, therefore, pay the price of his exploratory 'field research'. Some mechanism is required to close this avenue.

A person who is disqualified because of misrepresentation should be barred from holding elected office for a period of five years (which would guarantee no sooner than the next electoral cycle). This could be accomplished either by considering votes cast for him as having been wasted (in which case there is no by-election) or preventing him from running in any election within five years.

The law should be used not only correct past mistakes but to encourage truth-telling and minimise public waste.

Peter-John Gordon is a lecturer in the Department of Economics, University of the West Indies, Mona. Email feedback to columns@gleanerjm.com.