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Recent court decisions require review
published: Sunday | June 29, 2008


Alvaro Casserly, Contributor

The matter of citizenship is an ancient and fundamental right enjoyed by peoples everywhere. Also, dual citizenship has been a fact of life from time immemorial. There are some cases of assertion of citizenship that are worthy of mention. C

onsider Saul of Tarsus, later Paul of Tarsus and St Paul, who lived in the first century A.D. Paul is taken into protective custody in Ephesus. He spoke to the commandant of the barracks in Greek; and when allowed to address the people he spoke in the Jewish language (Hebrew).

Roman citizen

Paul asserted that he was a citizen of Tarsus, the principal city in Cilicia, which adjoins Capadocia, an area which was later known as Asia Minor, and today as Turkey. The Jews continued to be boisterous and Paul was to be further examined and was being prepared for a flogging. He asserted his status 'Civis Romanus Sum' ; "I am a Roman citizen". Immediately, all arrangements for flogging ceased. The commandant said it cost him a large sum for his Roman citizenship.

Paul said Roman citizenship was his by birth. That night it was reported to the commandant of the barracks that there was a plot against Paul's life and that more than 40 men were involved in the conspiracy. The commandant ordered a show of force in Paul's protection: 200 infantry, 70 cavalrymen, 200 light-armed troops to parade for three hours after sunset.

Level of importance

The 200 infantry took Paul part of the way to Governor Felix at Caesarea and the 70 cavalrymen escorted Paul to the Governor. A provision of 270 armed soldiers to ensure the security of one Roman citizen! That is the level of importance and commitment ascribed to Roman citizenship.

A second example: The time is the 1960s. On August 16, 1961, West Berlin and East Berlin, in Germany are separated by a wall. On June 26, 1963, President John F. Kennedy of the United States of America is on a visit to embattled West Berlin. With Chancellor Konrad Adenauer and Lord Mayor Willie Brandt he is driven through the city, where more than a million people packed the streets to greet him. At a city square with more than 250,000 people, President Kennedy addressed the citizens of Berlin and the world, saying in part " All free men, wherever they may be, are citizens of Berlin. Therefore, as a free man, I take pride in the words "Ich Bin Ein Berliner ". Those words reverberated around the world. The spirit of friendship and fellowship that he exuded entered the hearts of his hearers and they loved him for it. In time the wall was torn down and the city of Berlin restored as one.

It is of course understood that citizenship by birth is based on fact, it is not based on law. As has been stated "nature has implanted in your breast a sacred and indissoluble attachment towards that country from whence you derive your birth and infant nurture". Therefore, citizenship by birth should not be treated lightly or infringed. The Jamaica Constitution, Order In Council, 1962, does not grant the right of citizenship to persons born in Jamaica. That right is a fundamental and inalienable right that is based on fact, not on law. The Jamaica Constitution provides legal recognition of the existence of that right.

The Universal Declaration of Human Rights has influenced Constitutions that have been adopted since the Declaration came into effect. The Jamaica Constitution of 1962 has been influenced by the Declaration.

In connection with the matters being considered in this document, it is useful to make reference to three provisions in the Declaration. The first is: Article 13 (2) "Everyone has the right to leave any country, including his own, and to return to his country." This is a well defined right. It should be of little or no consequence when or how one leaves one's country or how one returns to one's country. The right to do so is defined and remains unchallenged and unchanged.

Upholding tradition

The second is: Article 21(1) "Everyone has the right to take part in the government of his country, directly or through freely chosen representatives." This recognises and upholds the tradition of democracy. Here, of course, the provision in the Declaration sets forth the right of a citizen to participate in the government of his country by offering himself for election or by participating in the election process for his representative.

The third is: Article 21(3) " The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures."

Again, the democratic tradition is enshrined in this provision of the Declaration. It must again be observed that the Constitution is not the basis of the "authority of government". The authority of government resides in the "will of the people." This is as it should be. The citizen makes the Constitution. The Constitution does not make the citizen. Indeed, where the citizens as a people are dissatisfied with the Constitution, the people may change the Constitution, as has been done in many countries.

The Jamaica Constitution Order In Council, 1962, is essentially about government; the structure, composition, responsibilities, functions, all designed to ensure good order and effective operations. The Jamaica Constitution addresses citizenship as it should. Always bear in mind the provision of the Universal Declaration of Human Rights that "the will of the people shall be the basis of the authority of government." The Constitution, therefore, gives legal recognition to the citizens of Jamaica. In the democratic tradition, the citizens are the bedrock of government. The "will of the people", not the Constitution, is the basis of the authority of government.

In the Jamaica Constitution, citizenship is addressed at Chapter 11, as follows:

3. (1) A person may, in accordance with the provisions of this Chapter, become a citizen of Jamaica by -

(a) birth; (b) descent; or (c) registration as a citizen of Jamaica based on marriage to a citizen of Jamaica.

(2) Parliament may make provision for the acquisition of citizenship of Jamaica by persons who do not become citizens of Jamaica by virtue of the provisions of this Chapter."

Outside the scope

The matters outlined at 3(1) for the acquisition of citizenship are all outside the scope of the Constitution. The matter of birth may have occurred decades before the Constitution was even contemplated.

In the case of descent, the event that initiated that claim may have been centuries before the Constitution. Also the marriage that is the basis of citizenship may have taken place several decades before the Constitution. So what the Constitution is doing is giving legal recognition to what already exists. Clearly, the Constitution is not creating citizenship, all such persons are recognised as citizens by virtue of the events set out at 3(1) (a ), (b), (c).

As regards 3 (2), citizenship may be acquired under provisions made by Parliament. Of course, potential applicants are free to determine whether they wish to seek such citizenship.

The Constitution also contains in the section on citizenship another provision as follows:

8. (1) No person who is a citizen of Jamaica by virtue of sections 3 (1) (a), (b), or (c) shall be deprived of his citizenship of Jamaica."

Again, the Constitution recognises that citizenship of Jamaica derived from the events and circumstances identified at section 3 (1) (a), (b), or (c) are not the product of the Constitution. Accordingly, the rights which may be attached to citizens of Jamaica remain and should not in any way be disturbed. The Constitution should not, and cannot, deprive any citizen of Jamaica identified under section 3 (1) (a), (b), or (c), of any right that was his before the Constitution came into effect.

Parliament

This is a fundamental principle that must be recognised and observed.

In Chapter V of the Constitution which deals with Parliament there is the following provision at section 40:

(2). No person shall be qualified to be appointed a Senator or elected to the House of Representatives who -

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

The question to be asked is the following: Is the Jamaica Constitution seeking to restrict or remove the right of a citizen of Jamaica "to take part in the government of his country, directly or through freely chosen representatives"? This is a fundamental right which cannot be altered by the Constitution. Indeed, the provisions at sections 3 (1) and 8((1) of the Constitution make it abundantly clear that citizenship should not be disturbed. Accordingly, the rights that flow from citizenship cannot be encroached upon. One of the fundamental rights is the right to take part in the government of the country.

Accordingly, the question that now has to be asked is the following:

To whom does section 40 (2) of the Jamaica Constitution apply? The evidence is clear, this section of the Constitution cannot be applied to citizens of Jamaica who have legal recognition at sections 3 (1) (a), (b), or (c) and at section 8(1) of the Constitution. The provisions set out at section 40 (2) of the Constitution may be applied to persons who derive citizenship under section 3 (2) of the Constitution, if the provisions of Parliament for acquisition of citizenship so provide.

The provisions of section 40 (2) of the Constitution may also be applied to persons, who are not citizens of Jamaica, but who may seek to take part in the government of the country. Indeed, the provisions appear to be directed at such persons.

The Jamaica Constitution also contains at section 39, the following provision:

39. Subject to the provisions of section 40 of this Constitution, any person, who at the date of his appointment or nomination for election -

(a) is a Commonwealth citizen of the age of 21 years and upwards; and

(b) has been ordinarily resident in Jamaica for the immediately preceding 12 months, shall be qualified to be appointed as a Senator or elected as a member of the House of Representatives and no other person shall be so qualified".

This section of the Constitution makes no reference to a citizen of Jamaica. The reason to be ascribed is that the citizen has the fundamental right to participate and assert "the will of the people as the basis of the authority of government". The Constitution does not.

Against the background of the material presented in this document, one may wish to ask whether the recent Court decisions are in accord with the Jamaica Constitution and the fundamental rights set forth in the Universal Declaration of Human Rights. Perhaps too much is being read into the Constitution and provisions are being extended beyond their scope. Also that the fundamental rights are not being recognised, observed and protected. It appears that those recent decisions of the Courts require review.

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