JG - Dual but unequal: the citizenship debate
Dual but unequal: the citizenship debate
published: Sunday September 23, 2007
Dr. Paul Ashley, Contributor
Some Jamaicans enjoy the protection and privileges of being citizens of other countries. Most are citizens of Jamaica only. Indeed, many with citizenship of more than one state - and even as many as two more - have played critical roles in the development of Jamaica. In reality, the Jamaican state recognises that Jamaican citizens may be citizens of other states but does not prescribe any limitations on the number.
However, the Constitution of Jamaica prescribes certain limitations on those enjoying multiple citizenship in so far as their participation in the Parliament goes. Such limitations - termed 'qualification' and 'disqualification' - are specifically stated in Section 39 and Section 40, respectively.
The individuals seeking membership in the Senate and House of Representatives must be (a) a Commonwealth citizen of at least 21 years old; and (b) has been ordinarily resident in Jamaica for 12 months prior to appointment to the Senate or nomination for election to the House of Representatives.
However, the individual concerned must not fall within the disqualification clauses specified in Section 40.
There are a number of conditions specified which would cause this adult Commonwealth citizen resident in Jamaica for the preceding 12 months to be disqualified from being appointed to the Senate or nominated for election to the House of Representatives. These include holding public office such as Judge of the Supreme Court, Judge of the Court of Appeal, member of a defence force; adjudged or otherwise declared bankrupt; certified insane; serving a sentence of six months or more; convicted of election related offence, etc.
For the purposes of this discussion, focus is confined to dual citizenship debate. Section 40 (2) states:
"(2) No person shall be qualified to be appointed as a Senator or a Member of the House of Representatives who -
(a) Is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State:'
Section 9 gives meaning to the classification 'Commonwealth Citizens'. Indeed, such was deemed necessary in order to supplement the capabilities of the newly emerging sovereign state. The pool of expertise from the Commonwealth family was harnessed. Many of the officials of these ex-colonial territories hold British passports.
The primary operative condition is "by virtue of his own act". The individual must have been capable of doing the act and has chosen so to do. Moreover, that condition is not operative if it was occasioned by another, by operation of law, or by conditions outside the control/decision of the individual concerned.
The condition outlined is not confined to the taking of an oath of allegiance - a necessary requirement of applications for citizenship. That acknowledgement of allegiance, obedience or adherence may be occasioned by membership in the defence force, holding important public office, national security or official representation roles.
A 'foreign Power or State' is any Power or State other than Jamaica. This construction is no doubt controversial it is settled in international law and appointed by a number of decided cases. The controversy is motivated primarily because it casts a wider net since it would include those who are holders of citizenship of Commonwealth states.
'Commonwealth' not 'Foreign'
Some proponents of the view that Commonwealth states are not included in the term 'foreign Power or State' seek to advance the following:
Chapter II of the Constitution of Jamaica deals with citizenship. Section 12 gives the following interpretation:
'Foreign country' means a country (other than the Republic of Ireland) that is not part of the Commonwealth;
Hence, the term 'foreign Power or State' should be construed in accordance with that of 'foreign country'.
As mentioned before, the proponents have yet to produce any judicial interpretation to substantiate their position. Moreover, it may be convenient to ignore that
(a) the section being relied upon begins 'In this Chapter -'. The interpretations are specific to Chapter II;
(b) 'foreign country' is not necessarily synonymous with 'foreign State or Power.'
In relation to those holding Canadian, British or even Barbadian citizenship in addition to their Jamaican citizenship, it is being argued that they have sworn allegiance to the same sovereign power - Her Majesty. Hence, these Commonwealth countries with Her Majesty as Head of State cannot be classified as 'foreign'.
legislative and governmental matters
The argument comforting to the holders of such citizenship - fails to surmount a basic constitutional reality. With regard to legislative and governmental matters, the head of state of say Jamaica is the Queen of Jamaica; the head of state of Australia is the Queen of Australia; the head of state of Canada is the Queen of Canada. Her Majesty occupies a number of distinct legal personalities and each in its exercise of its sovereignty has no legal consequences for the other. For example, for Jamaica, the United Kingdom would be classified as 'a foreign power', so too would Canada and Barbados. Furthermore, each of these sovereign states has its own rules in respect of nationality and their citizens owe different allegiances.
To put the argument here being advanced into sharp relief: If an adult Jamaican citizen by virtue of his own act acquires the nationality of any other State - be it Commonwealth or otherwise - he is disqualified. However, an adult Commonwealth citizen living in Jamaica for a year satisfies the condition of Section 39, whether or not he acquires Jamaican citizenship.
While recognising 'dual citizenship', not all such are treated equally in so far as the composition of Parliament is concerned. It depends to a large measure on how such foreign status was obtained - manner and timing. Is there a need for constitutional changes reflecting the new realities? That is another debate.
Dr. Paul Ashley is an attorney-at-law. He may be reached at email@example.com.