Citizenship and the Constitution

Published: Sunday | May 31, 2009

Source: Jamaica Gleaner - Jamaica

By: Robert Buddan, Contributor

At its most essential, a Constitution sets out the just and right relations between the State and the citizen. One relationship involves the basis upon which citizens can represent themselves through the state. This is about elections  The other relationship is about how the state represents citizens. This is about sovereignty. The point at which the two meet is where the citizen can represent him or herself in a way that does not undermine the sovereignty of the state.

The matter of dual citizenship  has to be seen in this context - a context of where rights and justice begin and/or end. Rights and justice cannot only be topical when it is convenient to the State and citizen. Nor can constitutional reform be reduced only to dual citizenship because it is politically expedient for a government and its supporters to do so. Yet, this is often what politics is about and when things are done for convenience and expedience, the problem at hand becomes politicised. The real problem then becomes lost in a confusion of convenient arguments and expedient actions.

Higher authority

Take the court rulings for by-elections in West Portland and North East St Catherine. A government has a thin majority by the certification of the Electoral Office. But that thin margin has still to be certified by the constitution, which is a higher authority than the Electoral Office. Election petitions have sought the decision of the courts. The courts have ruled in two cases that the persons elected could not be certified as being legitimately elected because they held dual citizenship. So, in this sense, the elections of September 2007 are still being certified. In the meantime, a slate of candidates certified by the Electoral Office is allowed to govern.

The Government and its spokespersons have made three expedient arguments. One is that it is an absurdity for a Jamaican's right to be elected (though he has dual citizenship) to be less than the right of a Commonwealth citizen who has spent a year in Jamaica. The second is that the Opposition is seeking to topple the Government through the courts. The third is that holding these by-elections is a distraction, is unnecessary, and is a waste of money. Prime Minister Bruce Golding made the first two arguments and Shahine Robinson, who is suspected of holding her seat illegitimately on the same grounds of dual citizenship and dual allegiance, made the last.

Political compromise

The solution offered by the Government is a political compromise, which is what convenience and expediency typically come down to. The compromise is that both sides in Parliament should agree to change the inconvenient clause(s) in the constitution and avoid a possible general election, which the country supposedly does not want at this time - an argument of political expediency. Political compromises are not in themselves bad. But they should be made to save, not substitute fundamental principles, those very principles that often get lost and forgotten in the pursuit of convenience and expediency.

The Opposition's response to the issue rests on three points. It has maintained that these by-elections were important to satisfy constitutional requirements for parliamentary representation; that its challenges in the court seek to uphold the constitution as it stands and that those challenges have been vindicated by the court's decisions so far; and that changes of the relevant clauses in the constitution required a referendum and a decision by the people, and could not be achieved by a compromise of convenience between the members of Parliament. Ultimately, it is saying that the fundamental issue at stake is the constitution, not the government majority. Section 39 is after all, entrenched. For purposes of expediency this might be regarded as absurd. For purposes of democracy, the constitutional fathers might be regarded as wise. It involves the grounds on which a citizen is qualified to represent the sovereign state.

Resolving the problem

This question has come down in practical terms to the problem of dual citizenship and how the country should treat it. Parliament is an important oversight body of the constitution. But sometimes, by an oversight, Parliament itself fails to see and correct some of the problems of the constitution. For 35 years since the Michael Manley government declared its intention to pursue comprehensive reform of the Jamaican Constitution the various joint committees and commissions on constitutional and electoral reform have failed to anticipate this problem or they saw nothing wrong with the section on dual citizenship. This is why it appears expedient now for the matter to be raised the way it has been since September 2007. The press and citizens, especially those who have dual citizenship, have also failed to raise it in the context of constitutional reform.

Hot debates

The hot debates over the constitution have been about whether we should retain the British monarch as head of state or have one of our own; deepen entrenchment over the fundamental rights of citizens and limit the state's powers to suspend those rights; adopt a more proportional arrangement for electing governments rather than keeping the 'winner-takes-all' electoral system; and have the Caribbean Court of Justice as our court of final appeal rather than using the British Privy Council for that purpose.

These are all vital matters. But as more and more Jamaicans came to live overseas and as we called upon more of them to serve the country, we (and they) somehow failed to ask the logical follow-up: Can they serve in Parliament even if they have dual citizenship and do Jamaican citizens, dual or otherwise, have the same right to serve as Commonwealth citizens?

Now that the matter has come to light we have to address it. But we cannot address it conveniently and expediently. To do that will get us into trouble of inconsistency.

Upcoming by-election

In the short weeks ahead the country will focus on the upcoming by-election in St Catherine. The by-election will get more attention than constitutional reform has received in any three-week period over the past 12 years save the attention given to the Caribbean Court of Justice. At least that issue was not about political expediency. It had no bearing on the Government's majority. The focus will narrowly be on the PNP-JLP competition for power, election tactics, spending, and who wins. When all of these by-elections are over, we should return to comprehensively review our Constitution. We cannot simply pick out the parts that are convenient from time to time to debate. No wonder constitutional reform has failed to get anywhere.