Thu | Nov 23, 2017

Gordon Robinson | Citizenship, propaganda and Shane Alexis

Published:Sunday | October 22, 2017 | 12:00 AM
In this 1968 Gleaner photo, then Finance Minister Edward Seaga addresses an audience at the opening of the Port Royal Grog Shoppe at Devon House. Behind him is then Prime Minister Hugh Shearer. Seaga has been vilified politically because he was born outside Jamaica.
Gladstone Taylor/Photographer Shane Alexis, medical doctor and MP aspirant for South East St Mary.
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On October 30, South East St Mary electors vote to replace late, lamented MP Winston Green (PNP).

JLP candidate Norman Dunn ran in the 2016 general election and lost, in a magisterial recount, by five votes, despite prevailing on election day. This, together with the fact the JLP forms Government, would, without more, make him favourite to win. So that it seemed surreal when the PNP decided to assist Dunn by fielding a candidate who isn't a Jamaican citizen; wasn't born in Jamaica; and said he couldn't bother to stand in any "long line" to apply for citizenship.

My father born ya!

My father born ya!

My grandmother born ya!

My grandmother born ya!

I and I born ya

I and I born ya

The 1976 general election was held against the backdrop of a highly suspect state of emergency declared by a PNP government that proceeded to detain several high-ranking JLP candidates/activists, including Pearnel Charles, Olivia 'Babsy' Grange, Ferdie Yap, and Pat Rogers. As if that contrived electoral advantage wasn't enough, JLP Leader Edward Seaga was crucified musically by The Message, a song recorded for the PNP campaign by activist Neville 'Struggle' Martin and produced by the great Clancy Eccles.

Why? On May 28, 1930, Eddie Seaga was born in Boston to Jamaican parents, thus becoming an American citizen. His parents brought him home at three months old and he was baptised in Jamaica in December. He renounced his US citizenship and became a Jamaican citizen BEFORE entering politics in 1959. Despite this, he was treated despicably by the PNP propaganda machine and nailed to a political cross by that song.

My leader born ya

My leader born ya

That's why I nah lef' ya!

No I nah lef' ya!

Jamaica's Constitution purports to allow Commonwealth citizens to sit in Parliament. This was part of Britain's 'independence' trick. We were bamboozled, hoodwinked, and duped into continuing British rule by another name while relieving Britain from the burden of paying for Jamaica. So we 'drafted' what was rumoured to be a Jamaican Constitution and gladly joined a British 'Commonwealth', another deception allowing Britain to pretend its empire persisted and keeping our systems, laws and people as British as possible.

It only took legendary lawyer and National Hero Norman Manley five years to recognise his massive error. At his final PNP conference (1967), Manley defined the next generation's mission in his famous farewell speech. He said:

""I say that the mission of my generation was to win self-government for Jamaica, to win political power, which is the final power for the black masses of my country from which I spring. I am proud to stand here today and say to you who fought that fight with me, say it with gladness and pride, mission accomplished for my generation.

"And what is the mission of this generation? ... It is ... reconstructing the social and economic society and life of Jamaica."

Realisation

He realised we were NOT independent. He understood Jamaica's 'Independence' was constructed by the illusion of a Constitution that, in reality, perpetuated colonialism. So his careful use of a derivative of 'reconstruction' meant he knew radical constitutional reform was required.

For 40 years, Jamaica deliberately misunderstood N.W.'s exhortation to unmask the trickster and undo its deception. Instead, we've tinkered with Jamaica's governance structure. It's been an embarrassing cock-up. It's time to stop this one-step-forward, two-steps-backward approach to national development based on an imported winner-take-all Westminster system and reconstruct transparent, indigenous Jamaican governance.

Why do we still allow Cabinet ministers to secretly write two-line letters as a result of which incompetent party hacks become chairmen of important statutory authorities? Why do we make fundamental top public-sector appointments behind closed doors? Why not invite transparent, competitive vetting processes instead?

Why do we allow ourselves to be treated so contemptuously by a hypocritical political party that vilified Jamaican citizen Seaga for being born abroad yet foists a candidate on us born in Canada who made no effort to obtain citizenship in 20 adult years? What does that tell you they think of you?

We 'ave them under manners

We 'ave them under manners

'eavy, 'eavy manners

'eavy, 'eavy manners

In a puerile attempt at tit-for-tat, PNP 'Patriots' alleged Norman Dunn's directorship in companies contracting with NHF disqualified him. Yawn. Even if they're right (doubtful), it's easily fixed, and the mischief behind the 'las' lick' allegation obvious.

PNP has more urgent problems. The Constitution provides:

"39 Subject to the provisions of Section 40 ... , any person who, at the date of his appointment or nomination for election:

(a) (sic) a Commonwealth citizen....; and

(b) has been ordinarily resident in Jamaica for the immediately preceding twelve months, shall be qualified to be ... elected as a member of the House of Representatives."

BUT the alleged qualification of 'Commonwealth' citizens to be elected is expressly made 'Subject to the provisions of Section 40 ...'.

"40(2) No person shall be qualified to be ... elected as 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;"

Making a mockery of the word 'foreign', the Constitution defines 'foreign country' as "a country (other than the Republic of Ireland) that is not part of the Commonwealth", but there is no definition of foreign 'power' or 'state'. In the landmark case of Dabdoub v Vaz, the appeal court found that an adult holding a foreign passport was disqualified as a candidate under Section 40 but Panton P. opined as follows:

"35. The framers of the Constitution clearly intended that Jamaicans, by their own act, sought and received non-Commonwealth citizenship, or, having not so sought it, nevertheless voluntarily acknowledged allegiance to such countries, should not sit in the House of Representatives."

This apparently eliminated section 40 as affecting Commonwealth citizens BUT:

The 'Commonwealth citizen' section is expressly made SUBJECT TO Section 40;

Dabdoub v Vaz was about a NON-Commonwealth country, namely USA, rendering President Panton's passing remark obiter (not central to the decision) and, accordingly non-authoritative; and

The Constitution doesn't define "foreign power" or "foreign state", nor expressly excludes Commonwealth governments from such designation.

In Dabdoub v Vaz, that excellent jurist, Algernon Smith JA, delved deeper, relying on Section 41(1) (d), which provides for an MP's seat to become vacant:

"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 in, or adopts any act done with the intention that he shall become a subject or citizen of ANY foreign power or state."

Smith JA wrote:

"66. To my mind, it is clear as can be that the disqualifying acts referred to in Section 41(1) (d) are the means by which a person will be regarded as being 'under acknowledgement of allegiance, obedience or adherence to a foreign power' pursuant to Section 40(2) (a). As was stated in Sykes v Cleary, such a provision was designed to ensure that 'MPs didn't have split allegiances and were not, as far as possible, subject to any improper influence from foreign governments'".

THAT, in my humble opinion, is the issue's essence. The 1962 Constitution made simply holding Commonwealth citizenship no biggie. But, if a candidate could be subject to "improper influence" due to "split allegiances", THAT ain't kosher. "Influence from" and "allegiance to" are specifically linked to ANY FOREIGN POWER (not country). It's the identity of the power to be exercised or the government/other authority exerting influence over the candidate that matters, NOT the fact of citizenship or the name of the country.

If a candidate is only accused of 'holding' Commonwealth citizenship (e.g., by birth), he qualifies to run. BUT if HE undertakes a positive act of allegiance to a foreign power, including a Canadian government (and the appeal court has found that the renewal of a passport is such an act), the candidate's allegiances are, at best, split; he's obliged to obey that foreign 'power' if it's exerted over him; and it's my opinion he's disqualified, as someone with a conflict of duty, from participating in lawmaking for Jamaicans.

Despite my opinion, Shane Alexis (oops, sorry, he introduced himself at PNP conference: "My name is DOCTOR Shane Alexis," so I asked if 'Shane' was his middle name) may've been legally nominated and may be qualified to run for MP. Regardless, voters are equally entitled to decide NOT to vote for DOCTOR Shane Alexis because they know he was born abroad; his allegiance is to Canada; and, until recently outed, repeatedly refused to acknowledge allegiance to Jamaica.

Peace and love.

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.