Tue | Dec 12, 2017

Editorial | Chuck must broaden constitutional discourse

Published:Sunday | October 15, 2017 | 12:00 AM

With the political squall over Shane Alexis' candidacy for the South East St Mary by-election, Justice Minister Delroy Chuck has promised to make a Cabinet submission that he hopes will lead to a constitutional change making non-Jamaicans ineligible for membership in the legislature.

This newspaper has no fundamental opposition to the minister's plan, if it is contemplated not merely as a knee-jerk response, which he hopes will elicit political traction for the governing Jamaica Labour Party (JLP), but the start of a deeper discourse on the structure of the Jamaican State and how to make it work better in the interest of all its citizens, including those in the diaspora.

In the event, Mr Chuck would be aware that as deeply entrenched clauses, those involving qualification for membership to the House and Senate are not easily changed. Their bills require a long time for debate and reflection and final approval in a plebiscite.

Dr Alexis is the People's National Party's (PNP) standard-bearer in the election in a fortnight's time. But he is not a Jamaican citizen, although he has lived here since childhood, held high-profile positions in medicine, and has been appointed to the boards of important organisations by the administrations of both political parties. He is Canadian, born to a Jamaican father. Dr Alexis has also held a Grenadian passport, which implies citizenship of that country, acquired through his mother.

 

SECTION 39 OF THE CONSTITUTION

 

All of this doesn't matter with respect to his Jamaican political aspirations. For under Section 39 of the Constitution, a Commonwealth citizen, "who has been ordinarily resident in Jamaica for the preceding 12 months, shall be qualified to be appointed to the Senate or elected to the House of Representatives and no other person shall be so qualified".

Canada and Grenada, as is Jamaica, are Commonwealth countries. Similar provisions are in the constitutions of Grenada and St Vincent & the Grenadines, while Antigua & Barbuda, Dominica, St Lucia, and St Kitts & Nevis are among those that require national citizenship to sit in the legislature.

All disqualify any person who, as expressed by Jamaica's Constitution, is, "by virtue of his own act, under any acknowledgement of allegiance, obedience, or adherence to a foreign power or state". It is this circumstance that disqualified Daryl Vaz and several other JLP members in the 2007 general election.

Justice Smith, of the Court of Appeal, in the Vaz case a decade ago, underlined the potency of Section 39, even as the court's then president, Justice Panton, underlined its oddity as the combined effect of the two sections that would allow a Jamaican who acquired citizenship of a "distant, autocratic, unfriendly" Commonwealth country membership of Parliament, while denying to one who became a citizen of a friendly one such as the USA. But, as Justice Panton noted, "that is the Constitution".

Amending Section 39 would require that the bill stand in Parliament for three months before its debate and a further three months after that before it can be voted on and passed. Passage in the House and Senate would require a two-thirds majority of all members. Further, after the bill is passed, the Government would have to wait at least two months, and up to six months, before it is put to a referendum.

The Holness administration promised in its first Throne Speech to, in that parliamentary year, bring legislation to remove the Queen as Jamaica's head of state and instate in her place a non-executive president. It didn't happen. Mr Chuck might want to encapsulate the two issues in a broader constitutional discussion, including this newspaper's concept of a Greater Jamaica, extending beyond the insular borders and with parliamentary representation for Jamaicans living beyond these shores.