SKELETON SUBMISSIONS OF THE APPELLANT

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO. 47 OF 2008

Supreme Court Claim No. 2007/HCV 03921

IN THE MATTER of the Representation of the People Act

AND

IN THE MATTER of the Election Petitions Act

AND

IN THE MATTER of a General Election to the House of Representatives for the Constituency of West Portland holden on the 3rd day of September 2007

BETWEEN DARYL VAZ APPELLANT

A N D ABRAHAM DABDOUB RESPONDENT

OUTLINE OF FACTS

1. The Appellant, Daryl Vaz (hereinafter referred to as “Mr. Vaz”) in an Appeal #47

of 2008 and the Respondent, Abraham Dabdoub (hereinafter referred to as “Mr.

Dabdoub”) contested the last General Election held in Jamaica on September 3, 2007.

Mr. Vaz represented the Jamaica Labour Party and Mr. Dabdoub the People’s National

Party and they contested for the Constituency of West Portland. At the conclusion of the

elections Mr. Vaz was declared to be the successful candidate and consequently took his

seat as a Member of the House of Representatives.

2. By a Fixed Date Claim Form/Election Petition (pages 35 – 40 Volume 1 Record)

Mr. Dabdoub challenged the said election results and more particularly contended in the

Particulars of Claim that Mr. Vaz was not qualified to be elected as Member of

Parliament particularly having regard to Section 40(2) of the Constitution of Jamaica. In

the Particulars of Claim the following is, inter alia, stated:

“10. That the nomination of the First Respondent was null and void and the Claimant/Petitioner, being the only validly nominated candidate, was and is entitled to be returned as the duly elected Member of Parliament for the Constituency of West Portland.

11. That the Section 40 (2) (a) of the Constitution of Jamaica specifically provides that no person shall be qualified to be elected 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 of State.

12. That the United States of America is a foreign Power or State.

19. That the First Respondent is a person who, as a consequence of the fact that he has, by virtue of his own act, acquired a passport issued by the Government of a foreign Power or State, under an acknowledgement of allegiance, obedience or adherence to a foreign Power.

20. That First Respondent has used his United States of America Passport Numbered 710898440 as a means of travel. Attached hereto marked “AJD 3” is a photocopy of the relevant page of the said Passport with the 1st Respondent’s photograph and signature thereon.

21. That the nomination of the First Respondent was null and void and the Claimant, being the only validly nominated candidate, is entitled to be returned as the duly elected Member of Parliament for the Constituency of West Portland.

(Pages 38 – 39 Volume 1 Record)

3. Mr. Dabdoub expressly asked the court to find that Mr. Vaz was not qualified to

be elected to the House of Representatives and that Mr. Vaz’s nomination on the 7th

August 2007 was invalid, null and void and of no legal effect.

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4. The Fixed Date Claim Form/Election Petition came on for hearing before the

Chief Justice, the Honourable Mrs. Justice Zaila McCalla and after a trial lasting twenty

four (24) days, the Chief Justice in a written Judgment held that Mr. Vaz was not

qualified to be elected to the House of Representatives. The Chief Justice expressly

ordered as follows:

“1. The first respondent on Nomination Day, August 7, 2007, was not qualified to be elected to the House of Representatives for the constituency of West Portland.

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 accordingly to the Speaker of the House of Representatives.”

(Page 52 Volume 3 of the Record)

This Appeal now challenges that finding of the learned Chief Justice.

5. The principal basis on which Mr. Dabdoub contends and the Chief Justice found

that Mr. Vaz was disqualified is that Mr. Vaz at the time of his nomination was in breach

of Section 40 (2) (a) of the Constitution of Jamaica. Section 40 (2) (a) provides:

“No person shall be qualified to be appointed as a Senator or elected as a member of the House of Representatives who –

(a) is, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign Power or State.”

6. The Chief Justice stated (at page 35 Volume 3):

“I hold further that by his positive acts of renewing and traveling on his United States passport the First Respondent has by virtue of his own act acknowledged his allegiance, obedience, adherence to the United States of America and by virtue of Section 40(2)(a) he was not qualified to be elected as a Member of the House of Representatives.”

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7. It is submitted that the learned Chief Justice failed to properly construe Section

40(2)(a) of the Constitution. Counsel will now seek to display the error herein.

A. THE CHIEF JUSTICE FAILED TO GIVE EFFECT TO THE PLAIN MEANING OF THE WORDS OF SECTION 40(2)(a)

8. Section 40(2)(a) contemplates that by the voluntary act of the candidate that

candidate comes under the acknowledgement of allegiance, obedience or adherence to a

foreign Power or State. It is submitted that the Chief Justice in interpreting this section

read this section as if the word “under” did not exist so that the section is treated as if it is

written as follows:

“No person shall be qualified for election as a Member of the House of Representatives who –

(a) is, by virtue of his own act acknowledges allegiance, obedience or adherence to a foreign Power or State.”

9. It is submitted that the meaning of the word “under” creates a significant

difference to the interpretation to be given. When meaning is given to the word “under”

it refers to the state or position of the candidate, that is to say, he is under an

acknowledgment of allegiance, obedience or adherence to a foreign Power or State. This

state or position is a one-off occurrence, that is to say, if you are under an

acknowledgement of allegiance you remain under that acknowledgement of allegiance,

obedience or adherence unless steps are taken to change that state or position. So that a

person who remains under an acknowledgment of allegiance can do nothing further to

bring himself under that very acknowledgement of allegiance, obedience or adherence.

The definition and use of the word “under” in the Shorter Oxford Dictionary Volume 2

supports the contention that the use of the word “under” is in relation to a state or

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position. A few examples will be set out to illustrate the point.

Under

1. Below, down below, beneath ---

2. In or in a position or state of subjection

3. Less in number or amount; lower in price

4. In or in the state of unconsciousness. Also under the influence of alcohol.

7. In an inferior or insubordinate position or capacity to; below in rank or standing

8. Subject to the authority, control, direction or guidance of:-

(a) led or commanded by;

(b) to be intreated by …

9. Subject to (authority, control, direction etc.)

10. Controlled, restrained or bound by.”

(Pages 1324 – 1325).

10. In effect the use of the word “under” in relation to Section 40(2)(a) of the

Constitution is a reference to the state or position of the candidate as being subject to or

under the control of a foreign Power. When the candidate finds himself under an

acknowledgement of allegiance, obedience or adherence to a foreign Power or State

nothing further can be done to bring him into that state or position. This issue is of

importance particularly having regard to the fact that the learned Chief Justice held (page

25 Volume 3 Record) that by the possession and use of a passport a citizen acknowledges

his duty of allegiance and the Chief Justice goes on to hold (at page 33 Volume 3 of the

Record):

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“If he had not renewed his passport but nevertheless retained his American citizenship in such a case there could have been no doubt that he had obtained American citizenship involuntarily and no question of disqualification could have arisen. Had he not renewed and traveled on his United States passport it could not have been argued that he was under any acknowledgement of allegiance to the United States of America by virtue of his own act.

It is not the owing of allegiance to the United States of America by virtue of being a citizen of that country that is a ground for disqualification from sitting in the House of Representatives but rather the voluntary taking of steps to acknowledge that citizenship that causes the disqualification.”

At page 35 Volume 3 Record the Chief Justice concluded:

“I hold further that by his positive acts of renewing and travelling on his United States passport the first respondent has by virtue of his own act acknowledged his allegiance, obedience or adherence to the United States of America and by virtue of Section 40(2)(a) he was not qualified to be elected as a Member of the House of Representatives.”

11. The learned Chief Justice was fully cognizant of the fact that the candidate in

order to be caught by Section 40(2)(a) that candidate must have come under the

acknowledgement of allegiance, obedience or adherence to a foreign Power voluntarily

i.e. “by virtue of his own act”. That is why the learned Chief Justice said:

“If he had not renewed his passport but nevertheless retained his American citizenship in such a case there could have been no doubt that he had obtained his American citizenship involuntarily and no question of disqualification could have arisen. Had he not renewed and traveled on his United States passport it could not be argued that he was under the acknowledgement of allegiance to the United States of America by virtue of his own act.”

In the instant case it was accepted by the learned Chief Justice that Mr. Vaz was an

American citizen but that he came to be an American citizen involuntarily i.e. not by his

own act. Mr. Vaz became an American citizen through his mother. The Chief Justice

held (at page 325 Volume 3) - “The Jamaican Constitution clearly permits dual

citizenship.” The first respondent did not become a United States citizen by virtue of his

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own act. As a citizen of the United States he is entitled to obtain a United States

passport. It is conceded that every citizen of a country is under an acknowledgement of

allegiance, obedience or adherence to that country. If that citizen happens to hold

Jamaican citizenship as well he is not prohibited to sit in the House of Representatives by

virtue of the fact that he is an American citizen. He is only so prohibited if it is

demonstrated that he voluntarily acquired United States citizenship. The express finding

of the Chief Justice was that Mr. Vaz did not voluntarily acquire United States

citizenship.

12. It is further submitted that Mr. Vaz came under an acknowledgement of

allegiance, obedience or adherence to the United States of America involuntarily (not by

virtue of his own act). The state or position of being under an acknowledgement of

allegiance was conferred upon him without any act on his part. There is no doubt that if

he did not have a passport or travelled upon it the learned Chief Justice would not have

held him disqualified.

13. It is submitted that the Chief Justice was wrong to say in effect that Mr. Vaz’s

position was affected by the obtaining of an American passport and the traveling thereon.

If it is accepted for the purpose of argument that obtaining and/or travelling on a passport

is an acknowledgement of allegiance, the issue is not whether Mr. Vaz acknowledges an

allegiance, obedience or adherence; the issue is whether he is under an acknowledgment

of allegiance, obedience or adherence to a foreign Power or State. Well before he

acquired and or travelled on a United States passport Mr. Vaz was under an

acknowledgement of allegiance, obedience or adherence. If being under an

acknowledgement of allegiance is a reference to a state or position no further act of Mr.

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Vaz could have conferred the state or position on him since he already had it.

14. It is submitted that even if the acquisition of or travel on a passport amount to an

acknowledgement it did not have the effect of bringing Mr. Vaz under an

acknowledgement of allegiance. This state or position he obtained at birth through his

mother. Mr. Vaz having come under an acknowledgment of allegiance no action

expressed or implied can again confer on him the state or position of being under an

acknowledgement or allegiance, obedience or adherence to a foreign Power or State.

15. It is submitted that when Section 41(1) of the Constitution is taken into account

support is found for the contention set out above. Section 41(1) states:

“The seat of a member of either House shall become vacant…

(d) if he ceases to be a commonwealth citizen or takes any oath or makes any declaration or acknowledgement of allegiance, obedience or adherence to any foreign Power or State or does concurs or adopts any acts done with the intent that he shall become a subject or citizen of any foreign Power or State.”

The formulation of Section 41(1)(d) is different to that of Section 40(2)(a). In the first

place there is no reference to by virtue of his own act and the word “under” is eliminated.

The position is being treated differently as between a person who is contesting an election

is under an acknowledgement of allegiance as against a person who is a member of the

House and subsequently while being a member acknowledges allegiance, obedience or

adherence to a foreign Power. If you are already a member of the House you ought not to

acknowledge allegiance, obedience or adherence or become a citizen. It is submitted that

the absence of the word “under” in Section 41(1)(d) supports the contention as to the

interpretation to be given to subsection 40(2).

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16. It is to be noted that none of the authorities cited before the Chief Justice dealt

expressly with the interpretation of the word “under” in the context of Section 40(2)(a).

SPENCER v SMITH (HIGH COURT OF JUSTICE ANTIGUA &

BARBUDA 23/6/03

17. In Spencer v Smith the matter concerned a Senator who prior to becoming a

Senator lived in Canada and obtained Canadian citizenship. The Canadian citizenship

was obtained by naturalization. He was subsequently after the acquisition of the

Canadian citizenship appointed to the Antiguan Senate. Section 30(1)(a) of the

Constitution of Antigua is similar to that of Section 40(2)(a) of Jamaica. Mr. Justice

Mitchell at paragraph 4 of the Judgment states:

“The determination of the issue rests on the words of the Constitution of the State of Antigua and Barbuda and the meaning of those words.

Section 30(1)(a) provides that no person shall be qualified to be appointed Senator who is by virtue of his own act under any acknowledgement or allegiance, obedience or adherence to a foreign Power or State. The meaning of these words would appear to be clear. They seem to say that while an Antiguan who has by act of law without any application on his part acquired a foreign citizenship is qualified to be appointed to the Senate, one who had himself taken the necessary steps to acknowledge allegiance to a foreign State, for example, by naturalization is not qualified.

That would mean that Mr. Yearwood was disqualified at the time of his appointment. However, Mr. Yearwood has raised some interesting points in opposition …”

18. The real issue in the Spencer case was whether Canada (for the purpose of the

equivalent Section 30(1) of the Constitution of Antigua) was a foreign Power or State.

The court held that Canada was a foreign Power or State. The court did not embark upon

the review of the relevant section with reference to the word “under.”

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19. The Chief Justice also referred to Sykes v Cleary (1992) 176 CLR. The relevant

provision of the Australian Constitution is to be found at Section 44 which states:

“No person who -

(i) is under any acknowledgement of allegiance, obedience or adherence to a foreign Power or is a subject or a citizen or entitled to the rights or privilege of a subject or a citizen of a foreign Power ...

shall be incapable of being chosen or to sit as a Senator or a member of the House of Representatives.”

20. In this case the issue concerned two candidates, one a Greek citizen by birth and

the other a Swiss citizen by birth. These two gentlemen subsequently acquired Australian

citizenship and it was argued that they were caught by the second part of Section 44(i) of

the Antiguan Constitution i.e:

“A subject or a citizen… of a foreign Power.”

There was no requirement for the consideration of the first part, that is to say, “under an

acknowledgement of allegiance, obedience or adherence to a foreign Power or State” and

although one of the five judges obiter referred to the disqualification created because the

candidate was under an acknowledgement of allegiance, obedience or adherence no

attempt was made to define this phrase with reference to the word “under.”

21. The learned Chief Justice also referred to the case of Chaitan v Attorney

General et al. In this case the relevant provision of the Trinidad & Tobago Constitution

provides at Section 48(1):

“No person shall be qualified to be elected as a Member of the House of Representatives who –

(a) is a citizen of a country other than Trinidad & Tobago and having become such a citizen voluntarily or is under a declaration of allegiance to such country…”

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22. In the Chaitan case the two candidates in question had obtained the citizenship of

another country by naturalization so that on the face of it these two candidates were in

breach of the provision which prohibits a citizen of another country (who had obtained

his citizenship voluntarily) from being a candidate in Trinidad & Tobago. The argument

before the Court of Appeal was that having regard to the amendment of the Constitution

to allow dual citizenship, Section 48 should not be interpreted to include persons who

obtain dual citizenship by naturalization. The court held that in the face of the clear

wording of Section 48 the submissions could not be sustained. No attempt was made to

give a meaning to the use of the word “under” in the context of Section 48 of the Trinidad

situation. The Chief Justice and Mr. Justice Sharma did not expressly refer to the part of

the provision “is under a declaration of allegiance to such a country.” This did not arise

in the case. Mr. Justice Nelson did refer to this part of the provision but did not

specifically seek to interpret the provision that refers to the word “under.”

23. It is submitted that there is no authority on this specific issue and that the court is

urged to accept the submissions made above and allow the appeal.

B. THE DISQUALIFICATION DOES NOT APPLY TO DUAL

NATIONALS WHO ACQUIRE CITIZENSHIP INVOLUNTARILY

24. In addition to the submissions above, it is submitted that Section 40(2)(a) of the

Jamaican Constitution ought to be interpreted so as to exclude persons who are dual

citizens involuntarily. Section 40(2)(a) clearly exempts a candidate who becomes a

citizen of another country involuntarily. The Chief Justice held that Mr. Vaz became a

citizen of the United States by virtue of and through his mother. He was not a citizen of

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the United States by naturalization. If he was a citizen of the United States by

naturalization then this would be a voluntary acquisition of United States citizenship and

he would be caught by the phrase “by virtue of his own act.” A person who becomes a

citizen of another country involuntarily and who therefore takes the benefit of this

citizenship ought not to be treated as having breached Section 40(2)(a) of the

Constitution. This would be tantamount to the Constitution giving with one hand and

taking with the other.

25. The Jamaican Constitution does not prohibit dual citizenship. Section 3(1) of the

Constitution declares that persons may become citizens of Jamaica by (a) birth, (b)

descent or (c) registration as citizens of Jamaica based on marriage to a citizen of

Jamaica. Section 3(2) of the Constitution states:

“Parliament may make provisions of the acquisition of citizenship of Jamaica by persons who do not become citizens of Jamaica by virtue of this chapter.”

The only basis provided for denying registration to a citizen under the Constitution is if a

person marries a Jamaican solely for the purpose of gaining citizenship or if the person

was convicted of certain criminal offence and thereafter seeks Jamaican citizenship (see

Section 7(2) of the Constitution).

26. It is important to note that Section 8 of the Constitution provides as follows:

“No person who is a citizen of Jamaica by virtue of Section 3(1)(a)(b) or (c) shall be deprived of his citizenship of Jamaica.”

In effect, a person who is a Jamaican citizen by birth, descent or registration via marriage

cannot as a matter of constitutional law be deprived of his or her citizenship for any

reason.

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27. It is submitted that a person who therefore holds dual citizenship but is a Jamaican

either by birth, descent or registration cannot be deprived of citizenship consequent on

holding the citizenship of another country. This was not always the case. The

Constitution of Jamaica, Section 8 as it stood prior to the amendment in 1999 stated:

“Section 8(1) If the Governor General is satisfied that any citizen of Jamaica has at any time after the 5th day of August 1962 acquired by registration, naturalization or other voluntary and formal act (other than marriage) the citizenship of any country other than Jamaica, the Governor General may by order deprive that person of his citizenship; (2) if the Governor General is satisfied that any citizen of Jamaica has at any time after the 5th day of August 1962 voluntarily claim and exercise in a country other than Jamaica any rights available to him under the law of that country being rights accorded exclusively to its citizens the Governor General may by order deprive that person of his citizenship.”

In effect under the Constitution prior to 1999 persons who voluntarily acquired

citizenship or took advantage of any rights exclusively belonging to a citizen of a foreign

country in that country had the potential of losing their citizenship in the discretion of the

Governor General. The citizen who was a citizen of another country involuntarily was

not covered by this provision. The amendment of the Jamaican Constitution clearly

shows that Jamaica no longer considers dual nationality reprehensible but in any event

even before the amendment dual nationality obtained without any act of voluntariness

was not proscribed.

28. It is submitted that this interpretation would accord with the relevant provisions of

the United Nations International Convention and Civil Political Rights Article 25 which

states:

“Every citizen shall have the right and opportunity without any other distinction mentioned in article 25 without unreasonable restrictions (1) to take part in the conduct of public affairs directly or through freely chosen representatives; (2) to vote and to be elected on genuine periodic elections which shall be by universal and equal, suffrage and shall be held by secret ballot, guaranteeing the free

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expression of the will of the electorate; (3) to have access and general terms of equality to the public service in his country.”

In the circumstances the interpretation of Section 40(2)(a) should be such as to limit as

far as possible the restrictions that may be visited on a Jamaican citizen’s right to

participate in Jamaican political affairs. The Jamaican Constitution already provides a

limit that is to say persons who voluntarily acquire citizenship are disqualified and this

restriction should be taken no further. It is a well accepted canon of construction that the

Constitution should be interpreted as far as possible so as to conform with international

convention to which Jamaica is a party. In Matadeen v Pointu (1999) 1 AC 98 Lord

Hoffman on behalf of the Privy Council stated (at page 114):

“It is a well recognized canon of construction that domestic legislation, including the Constitution, should if possible be construed so as to conform to such international instruments…”

(See also Neville Lewis et al v Attorney General (1999) 57 WIR at page 275).

29. In Chaitan case (supra) the Trinidad & Tobago Court of Appeal had to answer

the question “Does the fact that a citizen of Trinidad & Tobago has become by his

voluntary act and remains a citizen of another country or is under a declaration of

allegiance to another country made for the purpose of acquiring such other

citizenship disqualify him for election as a member of the House of

Representatives?” The court will recall that the relevant provision of the Trinidad &

Tobago Constitution is Section 48(1) provides:

“No person shall be qualified to be elected as a member of the House of Representatives who –

(a) is a citizen of a country other than Trinidad & Tobago and having become such a citizen voluntarily or is under a declaration of allegiance to such a country.”

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On the face of Section 48(1)(a) it is apparent that a Trinidadian who becomes a citizen of

another country by naturalization is disqualified since he acquired the citizenship in a

voluntary manner. The Respondents in the Chaitan case notwithstanding the clear

provision of Section 48(1) of the Trinidad & Tobago Constitution argued that having

regard to the fact that the Constitution of Trinidad & Tobago was amended to permit dual

citizenship and having regard to the provisions of article 21 of the Universal Declaration

of Human Rights the court ought to give Section 48(1)(a) of the Trinidad & Tobago

Constitution a limited interpretation so that persons who acquire citizenship of another

country voluntarily would not be disqualified from sitting in the House of

Representatives. This argument in the context of the Chaitan case was naturally rejected

since Section 48 expressly prohibits the situation that was being contended for. The

Chief Justice in rejecting the proposal stated (at p. 33 of Judgment):

“Two things are quite clear. One is that on the face of it the effect of Section 48(1)(a) is to disqualify for election to the House of Representatives any citizen of Trinidad & Tobago who holds the citizenship of another country having acquired that citizenship by voluntary act. The second is that if one were to treat Section 48(1)(a) (or the part of it that relates to the acquisition of a second citizenship) as applicable only to persons who are not citizens of Trinidad & Tobago that would render the provisions meaningless. The effect would be the same as repealing it.”

Nelson JA agreed with the Chief Justice. Sharma JA dissented and answered the

question as follows:

“Is a person who is a citizen of Trinidad & Tobago disqualified from election to the House of Representatives under Section 48(1)(a) of the Constitution if he is a citizen also of a country other than Trinidad & Tobago having become such a citizen voluntarily or is under a declaration of allegiance to such a country?” My answer to the question is NO – he should not be disqualified.”

It is difficult in the face of the clear words of Section 48(1)(a) for the position of Sharma

JA to be sustained but it is submitted that when the same question is asked in relation to a

person who acquires citizenship under Section 48(1)(a) of the Trinidad & Tobago

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Constitution involuntarily or under Section 40(2)(a) of the Jamaican Constitution not “by

virtue of his own act” Mr. Justice Sharma’s position would then be correct. The Chaitan

case did not expressly address this issue as to what is the position whether the candidate

is either a Jamaican or Trinidadian citizen or an American as well not by his own act or

involuntarily. Mr. Justice Sharma, it is submitted, correctly points out… “that a citizen

with dual citizenship has all the rights, privileges and obligations – citizenship carries

with it a bundle of rights. Examples are the right to vote, to own land, to enjoy all the

fundamental rights under the Constitution.”

30. It is therefore submitted that such a person who becomes a citizen of another

country involuntarily should not be treated as having acknowledged allegiance simply by

accessing the benefit of his dual citizenship which the Constitution expressly (a) permits

every Jamaican to have and (b) so long as it is involuntarily obtained that person is

entitled to sit in the House of Representatives. This right should not be cut down unless

the clear words of the Constitution so requires.

31. In the premises Mr. Vaz who it is accepted is an American citizen involuntarily

(not by his own act) is entitled to sit in the House of Representatives and merely

acquiring an American passport and traveling thereon which is a privilege of his

citizenship should not be treated as a breach of Section 40(2)(a) of the Constitution of

Jamaica.

32. There are two American cases which, it is submitted, support this contention. The

relevant legislative framework at the time of the American cases is set out in Section 401

of the Nationality Act of 1940 amended 8 USC. It provides:

“A person who is a national of the United States whether by birth or naturalization shall lose his nationality by:

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(a) obtaining naturalization in a foreign State… or

(b) taking an oath or making an affirmation or a formal declaration of allegiance to a foreign State or

(c) entering or serving in the armed force of a foreign State and unless expressly authorized by the laws of the United States if he has or acquires the nationality of such state or

(d) accepting, performing the duties of any office, post or employment under the Government of a foreign State or political subdivision thereof for which only nationals as such are eligible…”

This provision was construed by the United States Supreme Court in Kawakita v United

States (1952) 343 U.S. 717. This case concerns a dual Japanese and American citizen.

Just before the second World War Kawakita went to Japan and during the outbreak of the

war he worked under the supervision of the Japanese Army at a labour camp where he

mistreated United States prisoners of war. After the war he returned to the United States.

He was arrested and tried for treason. In his defence he alleged that by virtue of his

conduct he had in fact renounced his United States citizenship and/or lost his United

States citizenship pursuant to Section 401 of the United States Nationality Act. The

relevant facts succinctly stated were that:

(a) Kawakita moved from the United States and lived and worked in Japan.

(b) While he was in Japan changed his registration from United States to

Japanese.

(c) Acquired a Japanese passport and travelled on the passport to China.

(d) He accepted draft labour papers from the Japanese Government.

(e) He faced the east each morning and paid his respects to the Japanese

Emperor.

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Although he did not join the Japanese Army he worked in support of the Japanese war

effort in a Japanese labour camp under the supervision of the Japanese Army. The

provisions of Section 401(b) of the United States Nationality Act i.e. taking an oath or

making an affirmation or other formal declaration of allegiance to a foreign State is

similar to the part of the provision in Section 40(2)(a) of the Jamaican Constitution i.e.

acknowledgement of allegiance, obedience or adherence to a foreign Power or State. The

United States Supreme Court held that notwithstanding the conduct of Kawakita as set

out above, he did not lose his citizenship. The court will recall that Kawakita like Mr.

Vaz obtained a second passport and travelled on it. However, Kawakita went further than

Mr. Vaz when he made obeisance to the Japanese Emperor each morning and openly

supported the Japanese war effort against the United States. Notwithstanding this

however the court found him not to have renounced or lost is citizenship. These actions

were not treated as either taking an oath or making an affirmation or other formal

declaration of allegiance to Japan. Mr. Justice Douglas for the United States Supreme

Court set out the rationale for the court’s decision at page 4 of 14 as follows:

“As we have said dual citizenship presupposes rights of citizens in each country. It could not exist if the assertion of rights or the assumption of liabilities of one were deemed inconsistent with the maintenance of the other. For example, when one has a dual citizenship it is not necessarily inconsistent with the citizenship in one nation to use a passport proclaiming citizenship to the other…

Hence the use by the Petitioner of a Japanese passport on his trip to China, his use of the KOSEK entry to obtain work at the OEYAMA camp, the bowing to the Emperor and his acceptance of labour draft papers from the Japanese Government might reasonably mean no more than an acceptance of some of the incidents of Japanese citizenship made possible by his dual citizenship.”

(See also pages 7 and 8 of the Judgment)

The point being made is that having regard to the fact that Mr. Vaz is expressly permitted

and authorized by Section 40(2)(a) of the Constitution to stand for and sit in Parliament

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while holding Jamaican and American citizenship (the American citizenship being

obtained involuntarily or not by his own act). To subsequently say that his mere

acceptance of an incident of this American citizenship (i.e. passport and the travel on the

passport) disqualifies him is to cut down the effect of the provision allowing Mr. Vaz to

stand for election while holding dual citizenship.

33. Section 401 of the United States Nationality Act was considered by the United

States Court of Appeals 3rd Circuit in Jalbuena v Dulles. Jalbuena was a United States

citizen by birth who had allegedly lost his United States citizenship under the citizenship

disqualification clause because he (a) held dual United States and Philippines citizenship

(b) obtained and travelled under a Philippino passport (c) declared under oath that he

would bear true faith and allegiance to the Philippines. The Court of Appeal in

considering this issue held that these actions were insufficient to meet the standards of

disqualification provisions of the 1940 Act because (a) “the United States recognized

that a person may properly be simultaneously a citizen of this country and another”;

(b) “what Jalbuena did … was to exercise a routine privilege of Philippines

citizenship and for that purpose followed prescribed normal procedure”; (c) “it is

not and could not be reasonably argued that the mere obtaining and using of a

Philippines passport was in derogation of the American aspect of Jalbuena’s

citizenship”; and (d) “merely to acknowledge and declare the Philippines obligation

in a Philippines application cannot reasonably have significance in derogation or

renunciation of birthright American citizenship.” (See pages 4 to 5 of Judgment).

34. The Chief Justice in relation to the Kawakita and the Jalbuena cases found that

they were inapplicable to the instant case because those cases were dealing with the

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renunciation of citizenship. Her Ladyship said (at page 16 Volume 3):

“In my opinion the cases of Kawakita and Jalbuena are of no assistance in interpreting the relevant section of the Jamaican Constitution as those cases were dealing with renunciation of citizenship.”

The Chief Justice went on further to say that the courts in Kawakita and Jalbuena “held that the actions of Kawakita and Jalbuena did not amount to renunciation of American citizenship notwithstanding that in both cases their action amounted to an acknowledgement of allegiance to a foreign Power” (page 17 Volume 3).

The courts in Jalbuena and Kawakita did not find that the actions of Kawakita and

Jalbuena amounted to an acknowledgement of allegiance to a foreign Power and in this

regard the Chief Justice is in error.

35. Further, it is true that the purpose of the analysis in Kawakita and Jalbuena

cases was to determine whether there was renunciation and loss of citizenship while the

analysis in the Vaz case was to determine whether Mr. Vaz was disqualified from being a

member of the House of Representatives.

36. It is submitted that the final destination is of no moment where the road travelled

n both cases is the same. The analysis in both cases was whether in the context of a dual

citizenship and particularly in the Vaz case an involuntary dual citizenship. If the

conduct of obtaining the foreign passport and traveling upon it amounted to

disqualification in the case of Vaz and in the case of Kawakita and Jalbuena renunciation

of the citizenship. It is submitted that the analysis in the Kawakita case and the

Jalbuena case are applicable to the Vaz case.

37. In the circumstances therefore if the court accepts the interpretation of Section

40(2)(a) then the fact that Vaz acquired a United States passport, travelled on it, signed a

passport form or otherwise would not cause him to be in breach of Section 40(2)(a) of the

20

Constitution.

C. EXPRESSIO UNIUS EXCLUSIO ALTERIUS

38. This interpretation of Section 40(2) of the Constitution is to be supported when

Section 41 of the Constitution is considered. Section 41 (1) (d) of the Constitution says:

“The seat of a member of either House shall become vacant (d) if he ceases to be a commonwealth citizen or takes any oath or makes any declaration or acknowledgment of allegiance, obedience or adherence to any foreign Power or State or does concurs in or adopts any act done with the intention that he shall become a subject or a citizen of any foreign Power or state.”

This section is designed to capture the situation where a person is already a member of

Parliament and while a member of Parliament he falls under the disqualifying provision

set out in Section 41(1)(d) of the Constitution. Section 41(1)(d) mentions

“acknowledgment of allegiance, obedience or adherence to any foreign Power or State”

but in addition to that it refers to citizen of any foreign Power or State. If it is accepted

that the reference to an acknowledgement of allegiance, obedience or adherence to a

foreign Power is on its face wide enough to include a citizen of that foreign Power then if

it was the intention that the phrase “acknowledgment of allegiance, adherence and

obedience to a foreign Power or State” was to be given its widest meaning there would be

no need to expressly refer to citizen in Section 41(1)(d) of the Constitution. It is

submitted that this submission is supported by the principle of construction “expressio

unius exclusio alterius.” It is submitted that the principle when applied to this case means

“where a statute uses two words or expressions one of which generally includes the other

the more general term is taken in a sense as excluding the less general one; otherwise

there would have been little point in using the latter as well as the former.” (See

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Maxwell on Interpretation of Statutes 12th Ed. page 293). In the instant case the

general reference would be the reference in Section 40(2) to acknowledgment of

allegiance, obedience, adherence to a foreign Power which could be interpreted to include

a person who is a citizen and the limiting reference would be in Section 41(1) of the

Constitution which expressly refers to citizen. It would follow that Section 40(2) would

not include a citizen particularly a citizen who obtained the citizenship involuntarily.

39. It is submitted that having regard to the interpretation that has been urged in these

submissions that Mr. Vaz being a citizen of the U.S. involuntarily, that is to say, not by

his own act, having obtained U.S. citizenship by descent or derivation would not be

covered by Section 40(2). The allegiance etc. that he owes to the United States is not

contemplated by this section. If the allegiance etc. that he owes United States is not

contemplated by Section 40(2) of the Constitution it would not matter whether that

allegiance etc. has been acknowledged in any form or manner whatsoever whether

formally or informally.

D. IN ANY EVENT ACQUISITION AND TRAVELLING ON A

PASSPORT DID NOT AMOUNT TO AN ACKNOWLEDGEMENT

OF ALLEGIANCE

40. Assuming that the court does not find favour with the submissions made in

relation to the proper interpretation to be given to Section 40(2)(a) of the Constitution,

Counsel is now required to consider whether the alleged conduct of Mr. Vaz, that is to

say, the acquisition and travel on the passport for the purpose of Section 40(2)(a) of the

Constitution amount to an acknowledgement of allegiance, obedience or adherence to a

foreign Power or State. It is submitted that there is in fact no judicial authority to support

22

a contention that acquiring and travelling on a passport in the context of S. 40(2) (a) of

the Constitution amounts to an acknowledgment of allegiance. In the hearing before the

Chief Justice Counsel for Mr. Dabdoub placed before the Chief Justice a number of

articles and some authorities in support of his contention. It is submitted that a review of

these articles and authorities in fact support Mr. Vaz’s contention.

41. Some of these authorities are discussed hereunder. The Constitution of the

Commonwealth of Australia 4th Edition by R.D. Lumb was referred to particularly

page 68 paragraphs 165 to 170. This text deals with Section 44 of the Australian

Constitution which states:

“Any person who –

(i) is under any acknowledgement of allegiance, obedience or adherence to a foreign Power or is a subject or a citizen or is entitled to the rights or privileges of a subject or a citizen of a foreign Power …

shall be incapable of being chosen or sitting as a Senator or a member of the House of Representatives.”

42. At paragraph 167 of the text the author states:

“This ground of disqualification would disqualify a person who although formally an Australian citizen has transferred his loyalty to a foreign country. This would usually be attested by the fact that the person has taken on foreign citizenship, but there will be cases where de facto allegiance is given without taking on formal citizenship of that country, for example, by accepting a foreign passport or serving in the armed forces of the foreign country. The act must be one which clearly establishes the allegiance to the foreign country. The act of an honourary consul would not be of this nature nor would acceptance of a foreign award or honour.

The second part of this paragraph covers cases where an Australian citizen formally takes on foreign citizenship (even without renouncing his own citizenship) or where an Australian naturalized citizen voluntarily retains the privileges or rights attaching to his former citizenship.”

43. The author, Lumb, takes the same position in the 5th Edition of the text at pages 96

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and 97. It is to be noted that in both editions of the text the author relies on the case of

Joyce v DPP. Further reference will be made to this case in due course. It is submitted

that the emphasis in the two passages is in relation to a transfer of allegiance. The author

states:

“This ground of disqualification would disqualify a person who although formerly an Australian citizen has transferred his loyalty to a foreign country.”

In the author’s view the conduct which would run afoul of the Australian provision would

be that of a person who transfers his loyalty from Australia to another country. It is

submitted that this cannot be to be the position of Mr. Vaz in the context of Section

40(2)(a) of the Jamaican Constitution. There is no question of Mr. Vaz transferring his

allegiance. In the case of Mr. Vaz one must bear in mind that Section 40(2)(a) of the

Jamaican Constitution expressly allows persons who obtain or come under an

acknowledgment of allegiance by involuntarily (that is to say, not by virtue of their own

act) to be candidates and sit in the House of Representatives. In the first place therefore

if as is in the case of Vaz the initial acknowledgment of allegiance is not by virtue of his

own act he is not disqualified. This is a clear difference between the Australian

Constitutional provisions. Further and in any event where Mr. Vaz had the citizenship of

both countries at birth he cannot be said to have transferred allegiance because he held

the allegiance at birth. It is submitted that a transfer of allegiance in the context of a use

of a passport could only occur in relation to a person who at the time of acquiring the

passport was not a citizen of the country from whom the passport was being acquired. In

those circumstances it could not then be argued that being a citizen of one country and

acquiring the passport of another country there is a transfer of allegiance. Similarly, if

you are naturalized in another country it could possibly be argued that there is a transfer

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of allegiance. This position seems to be supported by the author referring to “accepting a

foreign passport.” In relation to Mr. Vaz, the passport which he accepted, was never a

foreign passport, he was not a foreigner to the United States and neither was he a

foreigner to Jamaica.

44. The fact that the author apparently supports his contention by reliance on the case

of Joyce v DPP further indicated that he intends to refer to the circumstances where the

acquisition of the passport is by a person who is a not a citizen of that country from

which the passport is acquired

45. It would now be useful to examine briefly the decision of Joyce v DPP 1946 AC

347. In this case Joyce was charged with treason. During the second World War Joyce

broadcast propaganda from Germany in support of the German war effort. He was not a

British subject but while he was in Germany he had a British passport and he apparently

travelled on this passport. In relation to Britain he was an alien but he nevertheless had

the British passport. The House of Lords held that while he retained the British passport

he was entitled to the protection of Britain and Britain was concomitantly entitled to his

allegiance. Therefore his support of the German War effort amounted to treason. The

House of Lords did not go on further to say that the holding of a passport by a British

subject and travel thereon amounted to an acknowledgment of allegiance. That was not

the issue. The issue was stated by Lord Jowitt, Lord Chancellor at page 364 of the

Judgment when he stated:

“And though in accordance with the usual practice, the certificate of the Attorney General does not specify the point of law raised in the appeal, it is clear that the question for your Lordships’ determination is whether an alien who has been resident within the realm can be held guilty and convicted in this country of high treason in respect of acts committed by him outside the realm.”

25

There was no issue of the relevance of the passport to a British subject. This was strictly

an alien position. Lord Jowitt did express a view as to the position of the alien (at pages

369 to 70) of the Judgment as follows:

“The material facts are these, that being for long resident here and owing allegiance he applied for and obtained a passport and leaving the realm adhered to the King’s enemies. It does not matter that he made false representation as to the status, asserting that he was a British subject by birth, a statement that he was afterwards at pains to disprove. It may be that when he first made the statement, he thought it was true. Of this there is no evidence. The essential fact is that he got the passport and I now examine its effects. The actual passport issued to the appellant has not been produced, but its contents have been duly proved. The terms of a passport are familiar. It is thus described by Lord Alverstone C.J. in R v Brazeford:

‘It is a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used so that individual protection as a British subject in foreign countries.’

By its terms it requests and requires in the name of His Majesty all those whom it may concern to allow the bearer to pass freely without threat or hindrance and to afford him every assistance and protection of which he may stand in need. It is I think true, that the possession of a passport by a British subject does not increase the Sovereign duty of protection, though it will make its part easier. For him it serves as a voucher and means of identification. But the possession of a passport by one who is not a British subject, gives him rights and imposes upon the Sovereign obligations which will otherwise not be given or imposed. It is immaterial that he has obtained it by misrepresentation that he is not in law a British subject. By the possession of that document he is enabled to obtain in a foreign country the protection extended to British subjects. By his own act he has maintained the bond which while he was within the realm bound him to his Sovereign. The question is not whether he obtained British citizenship by obtaining the passport, but whether by its receipt he extended his duty of allegiance beyond the moment when he left the shores of this country. As one owing allegiance to the King he sought and obtained the protection of the King for himself while abroad.”

Lord Jowitt further stated at page 321 as follows:

“A well known writer on International Law has said (see Oppenheim International Law, 5th ed., Volume 1 p. 546) that by a universally recognized customary rule of law of nations every State holds the right of protection over its citizens abroad. This rule thus recognized may be asserted by the holder of a passport which is for

26

him the outward title of his rights. It is true that the measure in which the State should exercise his right lies in its discretion. The issue of the passport the first step is taken. Armed with that document the holder may demand from the State’s representatives abroad and from the officials of foreign governments that he be treated at as British subject, and even in the territory of a hostile State may claim the intervention of the protecting power.

I should make it clear that it is no part of the case for the Crown that the Appellant is debarred from alleging that he is not a British subject. The contention is a different one: it is that by the holding of a passport he asserts and maintains the relation in which he formally stood, claiming the protection of the Crown and thereby pledging the continuance of his fidelity. In these circumstances I am clearly of the opinion that so long as he holds the passport he is within the meaning of the statute a man who if he is adherent to the King’s enemies in the realm or elsewhere commits an act of treason. There is one other aspect of this part of the case which I must deal.

It is said that there is nothing to prevent the alien from withdrawing from his allegiance when he leaves the realm. I do not dissent from this as a general proposition. It is possible that he may do so even though he has obtained a passport.

But that is a hypothetical case. Here there was no suggestion that the Appellant had surrendered his passport or taken any other overt steps to withdraw from his allegiance, unless indeed reliance is placed on the act of treason itself as a withdrawal.

That in my opinion he cannot do. For such an act is not inconsistent with his still availing himself with the passport in other countries and possibly even in Germany itself.

It is not to be assumed that the British authorities could immediately advise their representatives abroad or other foreign Government that the Appellant though the holder of a British passport was not entitled to the protection that it appeared to afford. Moreover the special value to the enemy of the Appellant’s services as a broadcaster was that he could be represented as speaking as a British subject and his German workbook showed that it was in this character that he was employed for which his passport was doubtless accepted as a voucher.”

46. Lord Porter (at page 374) stated the question as “… whether an alien who has

been resident here but leaves his country can whilst abroad commit an act of treason.”

Lord Porter went on to hold at page 375 that an alien who holds a British passport is

afforded protection by the British Government and later on that page His Lordship stated:

27

“It must be remembered that the matter to be determined is not whether the Appellant took upon himself a new allegiance, but whether he continued an allegiance which he had owed for some twenty four years and a lesser amount of evidence is required in the latter than the former. I cannot think that such a resident can in war time pass to and fro from this country to a foreign jurisdiction and be permitted by our laws adhered to the enemy there without being amenable to the law of treason. I agree with your Lordship also in thinking that if an alien is under British protection he occupies the same position when abroad as he would occupy if he were a British subject. Each of them owed allegiance and in so doing each is subject to the jurisdiction of the British Crown.”

So that it is clear that the Joyce case was dealing with an alien who had obtained the

passport of Britain and travelled on it. When Lumb refers to Joyce case in support of his

contention that obtaining a foreign passport is evidence of the transfer of loyalty, it is

submitted that he could only intend to be referring to a passport obtained by an alien and

not a person who is already a citizen. Mr. Vaz was a citizen of the United States and

having regard to the provisions of Section 40(2)(a) of the Jamaican Constitution he was

entitled to stand in elections because he did not obtain the citizenship voluntarily and in

relation to the United States he is not an alien the passport that he had cannot be treated

as a foreign passport. It cannot be said that he transferred his loyalty from one country to

the other. Some of the articles and texts cited on behalf of Mr. Dabdoub before the Chief

Justice indicated that the Australian provision is designed to prevent divided loyalties.

But it is submitted that the similar intent would not apply to the Jamaican Constitution

because the Jamaican Constitution expressly allows a person to be a citizen of more than

one countries and to be in Parliament provided that person did not obtain the citizenship

of the other countries voluntarily. The Jamaican Constitution contemplated that a person

may sit in Parliament with divided loyalties. There is no transfer of loyalty in this case.

47. The learned Chief Justice when dealing with Joyce case correctly held that the

House of Lords found that although Joyce was not a British subject by virtue of the

28

possession of the British passport he owed allegiance to Britain. However, the learned

Chief Justice fell into error when she went on to say “In Joyce (supra) the possession of

the passport was by an alien. However the case is persuasive authority for the proposition

that by the possession and use of a passport a citizen acknowledges his duty of

allegiance.” Joyce does not in fact go this far. It does not purport to make this statement.

The learned Chief Justice is clearly wrong in this regard.

48. In any event even if Joyce is an authority that the subject or citizen of a country

who happens to have the passport of that country and travels on it acknowledged

allegiance to that country it would not be relevant to the Vaz case as already argued

because of the construction to be given to Section 40(2)(a) of the Jamaican Constitution

49. The textbook “Members of Parliament: The Law and Ethics” by Gerard

Carney was also referred to. The textbook deals with Section 44(i) of the Australian

Constitution which was already referred to at page 29 the author states:

“The first limb – ‘under any acknowledgement of allegiance, obedience or adherence to a foreign Power’ – requires an acknowledgement of foreign loyalty. This may be formal or informal acknowledgment. In view of the second limb of this paragraph this limb includes acts of acknowledgement other than those given by a subject or citizen of a foreign Power or by those entitled to the rights or privileges thereof.

An acknowledgement of the purposes of this first limb would appear to cover: acceptance of a foreign passport; service in one of the foreign armed forces; taking an oath of allegiance to a foreign Power (not being a subject or citizen of that State); seeking the protection of a foreign State; or even describing oneself in an official document as a citizen or subject of a foreign State. However this limb appears not to extend to an appointment as an honourary consul or the acceptance of a foreign award or honour, nor to owing a local allegiance which arises by virtue of temporary residing in a foreign country.”

Reference is made to acceptance of a foreign passport as an example. This is supported

at Note 104 by a reference to the textbook written by R.D. Lumb “The Constitution of

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the Commonwealth of Australia” – annotated 4th Edition). This has already been dealt

with in the previous submissions and those submissions are equally applicable to this

reference.

50. It is submitted that further support can be taken from the author’s reference to

“taking an oath of allegiance to a foreign Power.” The author in parenthesis goes on to

say “not being a subject or citizen of that State. The author’s intention, it is submitted, is

to demonstrate that a person who not being a citizen of another country takes a passport

of that country can be said to have acknowledged allegiance. This does not apply to Mr.

Vaz. The author goes on to give another example that is describing oneself in an official

document as a citizen or subject of a foreign State. No authority is given for this position

but this too must be limited to a person who is not entitled to that citizenship. It could not

be intended to refer to somebody like Mr. Vaz who is (1) permitted by the Jamaican

Constitution to hold dual citizenship; (2) to sit in Parliament providing that his dual

citizenship was involuntary. Mr. Carney in an article “Foreign Allegiance: A Vexed

Ground of Parliament Disqualification – (1999) Bond L. Rev. 16” repeats the

assertion that he stated earlier in his text as follows”

“An acknowledgement for the purpose of this first limb would appear to cover: acceptance of a foreign passport; service in one of the foreign armed forces; taking an oath of allegiance of foreign Power (not a subject or citizen of that State); seeking the protection of a foreign State; or even describing oneself in an official document as a citizen or subject of the foreign State.”

The author again refers to Lumb’s work in support of his contention that a foreign

passport may amount to an acknowledgement of allegiance and relies on an article

“Nationality Qualification for Members of Parliament 1982 8 Monarch University

Law Review 163 Report” in support of the contention that taking an oath of allegiance

30

to a foreign Power or seeking the protection of the foreign Power or describing oneself as

a citizen of the foreign State may amount to acknowledgment of an allegiance in relation

to the Australian Constitution. Submissions made earlier in relation to the other articles

and text are equally applicable to this article.

51. In summary it is submitted that (a) there is no judicial authority which states that a

person in the position of Mr. Vaz, that is to say, where he is permitted by the Jamaican

Constitution to retain dual citizen and to sit in Parliament if the dual citizenship is

involuntary and who obtains and travels on an American passport is transferring his

allegiance. The reference to obtaining a foreign passport is a reference to an alien who

obtained the passport as in the Joyce case.

52. The Australian decision High Court decision of Sykes v Cleary 1992 176 CLR

77 was cited to the Chief Justice. This is a case that dealt with Section 44(1) of the

Australian Constitution. It concerns two persons who contested an election who were

Swiss and Greek nationals respectively but had obtained Australian nationality by

naturalization. They had taken some steps to renounce citizenship of Greece and

Switzerland but as it turned out the majority o f the court held that the steps taken were

not enough and at the time that there were contesting the election there were Greek and

Swiss nationals respectively and thus in breach of Section 44 of the Australian

Constitution. It is to be noted that there are clear differences between the Australian and

Jamaican Constitution that makes Sykes v Cleary inapplicable to the Vaz case. The

main differences are: there is no provision in the Australian Constitution which exempts

persons who come under an acknowledgement of allegiance involuntarily (or not by his

own act). The Australian Constitution simply prohibits persons who are under an

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acknowledgement of allegiance, obedience or adherence, prohibits persons who are

citizens of another country or who are entitled to the rights and privileges of a citizen of

another country from sitting in Parliament or the Senate. The Jamaican Constitution

expressly permits such persons who find themselves in the position stated in the

Australian Constitution to sit in Parliament if they can show that they obtained that

position involuntarily (not by their own act). This is a major difference that must be

observed when considering the Australian Constitution. Secondly, Sykes v Cleary was

not in fact considering the first aspect of the Australian Constitution that is under any

acknowledgement of allegiance, obedience or adherence. It was considering the second

part, that is to say, a “citizen or subject of a foreign Power country”. The court held that

the gentlemen in question were citizens of a foreign country so that the court was not in

fact considering the portion of the Constitution in Australia which is relevant to the Vaz

case. The majority of the court did not in fact mention this aspect at all in coming to its

decision. Mr. Justice Dean however did make a passing reference to the first part of the

Australian Constitution at page 127. He stated:

“Section 44(1) whole purpose is to prevent persons with foreign loyalties or obligation from being members of the Australian Parliament. The first limb of the subsection (that is “is under any acknowledgement of allegiance, obedience or adherence to a foreign Power”) involves an element of acceptance or at least acquiescence on the part of the relevant person.”

53. It is submitted that this section must be considered in light of the provisions of the

Jamaican Constitution. In so far as Mr. Justice Dean refers to an acceptance or

acquiescence if taken literally it would mean that a person who is a citizen of another

country involuntarily would be obliged to give up that citizenship because it could be said

that he accepted the citizenship when he become an adult or acquiesced in it. This would

32

be contrary to the express provisions of the Jamaican Constitution that permits dual

citizenship and where that citizenship is obtained involuntarily permits the citizen to sit in

Parliament.

54. Mr. Justice Dean further suggests that the purpose of the Australian provision is to

prevent persons with foreign loyalties or obligations from being members of the

Australian Parliament. Similarly the joint Judgment of Mason CJ, Toohey and McHugh J

(at page107) the following is stated:

“It has been said that the provision was designed to ensure:

‘that members of Parliament did not have a split allegiance and were not as far as possible subject to any improper influence from foreign Governments.’”

55. It is submitted that the purpose for Section 40(2)(a) of the Jamaican Constitution

cannot be said to be similar to that of the Australian Constitution as interpreted by the

Australian court in Sykes v Cleary. It cannot be said that the Jamaican Constitution

intended to prevent persons sitting in Parliament with split allegiance. The Jamaican

Constitution expects that a person who happens to be under an acknowledgement of

allegiance to another country (a citizen of that country) to sit in Parliament provided he

came under this acknowledgement (or citizenship) involuntarily. This would be split

allegiance. The Jamaican Constitution contemplates this happening. The Australian

Constitution does not contemplate this situation occurring and in the circumstances this

case would not be of any real applicability to the Vaz case.

56. The Chaitan case is already referred to and the provision of the Trinidad &

Tobago Constitution has been set out. It states:

“No person shall be qualified to be elected as a Member of the House of Representatives who –

33

(a) is a citizen of a country other than Trinidad & Tobago having become a citizen voluntarily or is under a declaration of allegiance to such a country.”

The Trinidadian Constitution in effect allows persons who are citizens from other

countries to sit in their Parliament providing that the citizenship is obtained involuntarily.

This is similar to the Jamaican provision. However, it goes on to say that that a person

who is under a declaration of allegiance to a foreign country is prohibited. This aspect is

slightly different to the wording from the Jamaican provision which simply says that the

candidate ought not to be under an acknowledgement of allegiance, obedience or

adherence to a foreign Power. The Chief Justice of Trinidad did not purport to give a

meaning to the phrase “is under a declaration of allegiance to such a country.” But Mr.

Justice Sharma did posit an opinion. He stated at page 35 as follows:

“The Republican Constitution refers to a person who ‘is a citizen of a country other than Trinidad & Tobago having become such a citizen voluntarily or under a declaration of allegiance to such a country.’ Counsel for the appellant and the first respondent submitted that this section clearly creates two categories, the first was obvious and the second dealt with persons who had made declarations consequent on service in foreign army, in a foreign government etc. I accept this submission.”

This statement of the law is no less substantial than any other statement. In fact having

regard to the fact that there is no judicial pronouncement on this aspect, this statement by

Mr. Justice Sharma should be given great weight. If this is the meaning of the section it

would mean that this is an additional ground on which it could be held that Vaz did not

breach Section 40(2) of the Jamaica Constitution. There is no evidence that he served in

any foreign army. Mr. Justice Nelson in referring to this section purported to rely on the

Judgment of Brennan J in Sykes v Cleary. Mr. Justice Brennan of course was referring

to the Australian Constitution. Nelson J.A. at page 173 of the Judgement summarized

34

Mr. Justice Brennan’s position in Sykes V Cleary as follows:

“Brennan J. held that apart from acknowledgement of adherence (sic) to a foreign Power the subsection contained three categories of disqualification. The first was where as a matter of fact the person has acknowledged allegiance to a foreign Power.

The second category covered persons who by reason of their status as subjects or citizens to a foreign Power owe a duty of allegiance to the foreign Power according to the law of the foreign Power.

The third category related to those who, though not foreign nationals are under the protection of a foreign Power, as if they were subjects or citizens of the foreign Power.

In my view the phrase ‘under a declaration of allegiance to such a country’ in Section 48(1)(a) of the Constitution embraces the three categories referred to by Brennan J. I am unable to see why it should be restricted to Trinidad & Tobago’s citizens who are subjects of another country by denizaton, however temporary.”

Mr. Justice Nelson did not refer to the provision of the Trinidad Constitution that

exempts persons who are citizens of other countries involuntarily. But it may not have

been necessary for him to do so since the issue had nothing to do with involuntary

citizenship. The persons in question had obtained their citizenship by naturalization so

they could not conceivably come under the involuntary provision. That this statement by

Mr. Justice Nelson when being used to consider the Jamaican provision is of limited

value since in the Vaz case the situation is dealing with a person who obtained American

citizenship involuntarily and the Jamaican Constitution expressly exempts such persons.

The court cannot simply apply this statement by Nelson JA or as stated by Brennan J.

Even if the section contemplates the three categories the breadth of the section is limited

by the involuntary provision of the Jamaican Constitution.

CONCLUSION

57. In concluding this aspect of the submission it would be useful to refer to the

35

Article by T. Alexander Aleinikoff Symposium on Law and Community: Areas of

Lost Citizenship 1986 84 Michigan Law Review 1471 at 1501. The author stated:

“In the context of naturalization ‘naturalization in another country by itself can hardly be deemed to indicate a transfer of allegiance.’ People may seek citizenship in other countries in order to remain with family members or obtain employment. Such conduct in many ways (if not most) say little about continuing allegiance… It may be difficult to define categories of conduct evidenced in the loss of allegiance. Perhaps joining an army of an invading enemy or working for the violent overthrow of the State may possibly be seen as indicating no further attachment to the community.”

The view of this author is of similar strength as the view of the other authors, Carney and

Lumb, for example. If it is that naturalization may not itself demonstrate a transfer of

allegiance so similarly obtaining and travelling on a passport would not have this effect.

58. It is therefore submitted that the Appeal should be allowed and the Fixed Date

Claim Form/Election Petition filed by Mr. Dabdoub should be dismissed with costs to

Mr. Vaz.

RESPECTFULLY SUBMITTED:

RANSFORD BRAHAM &

SUZANNE RISDEN-FOSTER

IN CONSULTATION

Dated the 13th day of November, 2008

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