Ken Jones, Contributor

Manley, Worrell and Franklyn

In post-election contentions some losing players are seeking to be declared winners by technically knocking out their opponents with Section 40 of the Constitution.

Learned judges will in time decide the validity of claims that will, in effect, benefit just a few individuals. However, the outcome may also determine whether a million Jamaican dual citizens are to be accorded identical and equal rights in representational politics.

The restrictive rule has remained unused for 45 years; and in that time, many a dual citizen has served, without question, in both the Senate and the House of Representatives. The country's first Prime Minister may have been a dual citizen, having been, by his own account, adopted in Spain by a Spaniard. In 1944, he forestalled a PNP move to disqualify him as a parliamentarian, but that was because he had not yet formally changed his name from Clarke to Bustamante. There is no report that he ever renounced the Spanish nationality he must have taken on adoption, yet he rose to the highest parliamentary rank in Jamaica.

Bustamante got around Section 40 of the Constitution when he appointed Frank Worrell to the Jamaican Senate. I do not recall any question being raised then or since about Worrell's Barbadian nationality. Norman Manley named Dudley Thompson to the same Senate and nobody bothered about the Panamanian citizenship he had acquired at birth. Nor is there any report that Hector Wynter was required to shed his Cuban credentials. There was no denial of their love of and loyalty to Jamaica; and these appointments by our former heads of Government, might be judged against the explanation of dual citizenship as given by Norman Manley in March 1962.

a clarifying statement

The then Premier of Jamaica actually issued a clarifying statement after helping to draw up the Jamaican Constitution. His interpretation should be carefully examined, especially where he wrote:-

"Our Constitution permits a Jamaican to hold citizenship in another country - without peril to his status as a Jamaican citizen, provided that such Jamaican did not acquire his second citizenship by asking for it or by taking part in any ceremony (other than marriage) if he acquired it after 6th August 1962, and provided, also, that he does not exercise any of his rights as a citizen of that second country whenever or however those rights were acquired. For example, a citizen of Jamaica who was born in another country, (whether Commonwealth or foreign) and who, by the laws of that country, is still a citizen of that other country, will still be regarded as a full citizen of Jamaica.

If, however, he acts as a citizen of that other country (e.g. by voting in its elections or holding public office where by the law of that country only its citizens may vote or hold such offices, or is travelling on that country's passport) then, and only then, does any question of depriving him of his Jamaican citizenship arise. Nor is this an automatic process of law. Our Constitution simply states that anyone who acts as a citizen of another country, or who applies to be naturalised as a citizen of another country, may (not must) be deprived of his Jamaican citizenship."

Because of a tradition of travel and migration, Jamaicans have always placed importance on dual citizenship and the country has benefited greatly from that course of action. It was a dual citizen, Walter Adolphe Roberts, who began the struggle for Jamaican Independence. In 1936, he and other migrant Jamaicans established the Jamaica Progressive League (JPL), with the primary purpose of getting political Independence for Jamaica. The JPL was a sponsor of the PNP when it was founded and it provided inspiration and substantial backing for the self-government platform. I wonder what those giants - Roberts, Wendell Malliet, Wilfred Domingo, the Rev. Ethelred Brown - might say about today's PNP stand against dual citizens.

to promote the UNIA

National Hero Marcus Garvey did not acquire foreign nationality. However, it is known that in 1921, he was seriously considering American citizenship as a convenient way of promoting the UNIA. Had he done so, it would have been accepted that his loyalty to Jamaica was undiminished by the act. Dual citizenship as a matter of convenience is well understood by millions who, over decades, have left these shores for social or economic reasons; and no Jamaican politician in his right mind would dare to publicly question the patriotism of the Jamaican diaspora. We all know why Jamaicans often swear allegiance to foreign countries; and the reason is definitely not lack of love or absence of loyalty to the land of their birth.

It is from our migrants, including dual citizens, that Jamaica receives remittances to bolster the economy. Internationally recorded figures published in March of this year state that Jamaica is the second-highest recipient of remittances in the Latin American-Caribbean region. The country is estimated to collect U.S $ 641.74 per person per annum, which is comparable to the total value of all our exports combined. Thousands of Jamaicans look forward to these remittances; and a Gleaner poll last year showed that 12 per cent of them "depend absolutely" on this income.

A year ago, while speaking in New York, then Prime Minister Portia Simpson Millerconfirmed that, "the growth in remittances from the Jamaican Diaspora in the U.S.A., Canada and the United Kingdom has been truly phenomenal - remittances now surpass the gross earnings from tourism and bauxite and alumina."

Until recently, the PNP administration had openly courted support from Jamaicans abroad, including those with dual citizenship. Junior Minister for Foreign Affairs, Delano Franklyn, was among those urging Jamaicans to get American citizenship. In his words, the aim was to "galvanise our nationals to play a more active role in their communities in their adopted country, as well as in the country of their birth." He implored Jamaicans to become citizens of the countries of their residence "so you can take more effective roles in the decision-making process".

regularise yourself

Before that, Mr. Franklyn told Jamaicans in Canada: "It is critical that you regularise yourself, so if you are not a citizen, become one." Strangely, the PNP while asking our dual citizens to seek public office in America, finds it unacceptable for them to do the same thing in their own homeland.

Islanders are noted for reaching out to opportunities provided by the larger more advanced mainland countries. The British writers of our Constitution may not have taken this into account when they inserted Section 40 and had it accepted by a negotiating team that seems to have had no intention of imposing its restrictions. But what escaped the colonial rulers should not have survived for so long that it can now be used to prevent good citizens from serving in the island's Parliament. It should be noted that neither Britain nor the United States imposes any bar on dual citizens sitting in their respective national legislatures.

Jamaica recognises dual citizenship and it is so written in the Jamaican passport. Why then are Jamaican politicians questioning the loyalty of Jamaican dual citizens and seeking to bar them from parliamentary service when America allows these same citizens of Jamaica to occupy public officesin the United States? State Department officials confirm that the formal oath of allegiance is never enforced. One American spokesman is quoted as saying: "The United States allows dual nationality. It doesn't keep track of persons who are something else besides a U.S. citizen. And there is no such thing as being less than a full U.S. citizen with all the rights. We have no interest in a person's dual nationality or whether he votes in a foreign election - that's not an expatriating act."

useless hand-me-down

In my view, Section 40 is a useless hand-me-down from former colonial masters. It does nothing for the Jamaican people and only hampers our ability to draw from a great pool of our talented people. It is also out of step with modern ideas of globalisation and international cooperation. It might even be repugnant to the idea of democracy and human rights, as set out by the United Nations in the International Covenant on Civil and Political Rights. Jamaica signed this agreement in December 1966, and to continue with Section 40 might well put us in breach of Article 25, which reads in part:

"Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors."

It is time to exorcise rather than exercise Section 40. Can Jamaicans dare hope that members of the new Parliament will together and with due haste, do what is necessary to revise or remove it from the Constitution?

Ken Jones is a veteran journalist and general secretary of the Farquharson Institute of Public Affairs. He may be contacted at Ken Jones alllerdyce@hotmail.com.