Left: Abe Dabdoub has argued that he should be declared the MP because he had singular legitimacy in the West Portland electoral contest. Right: Daryl Vaz has since relinquished his US citizenship, but may lose his seat if the court overturns the chief justice's ruling that a by-election be held. - File Photos

A DECISION is to be handed down early next year in the dual-citizenship case which People's National Party candidate Abe Dabdoub has brought against West Portland Member of Parliament (MP) Daryl Vaz. President of the Court of Appeal, Justice Seymour Panton, and Justices Algernon Smith and Karl Harrison, heard legal arguments and reserved their decision on December 3.

Dabdoub had filed an election petition after the general election last year, claiming that Vaz was not entitled to be an MP because he was an American citizen and the holder of a United States (US) passport.

Chief Justice Zaila McCalla heard the matter in the Supreme Court and in April ruled that although Vaz inherited citizenship through his mother, an American citizen, he had obtained a passport and travelled on it, and, therefore, was not entitled to be an MP. She ordered a by-election in the constituency of West Portland.

Dabdoub appealed the chief justice's ruling, contending that she erred in her ruling because he should have been returned as the duly elected MP for the constituency.

American citizenship

Vaz also appealed on grounds that he did not obtain American citizenship because of his own act, but through his mother.

Following the chief justice's ruling, Vaz renounced his American citizenship. He remains an MP because he has been given a stay of execution pending the outcome of the appeal.

Attorneys-at-law Gayle Nelson and Jalil Dabdoub, who represented Dabdoub, submitted that Dabdoub gave adequate notice to the electors in the constituency that Vaz was an American citizen.

They argued that constituents who voted for Vaz would have wasted their votes. They submitted that those who voted for Dabdoub would be disenfranchised if the order for a by-election was upheld.

In response to that submission, attorneys-at-law Ransford Braham and Susan Risden Foster, who represent Vaz, argued that the law required that the information given to the public must be clear, definite and certain and that was not the case in the notices which Dabdoub had issued.

The lawyers said, having regard to the intervention of then Director of Elections Danville Walker, who said all the candidates were properly nominated, it could not have been said that constituents wasted their votes.

Acknowledged allegiance

Dabdoub claims that the chief justice was correct when she found that Vaz was not entitled to be an MP because he was the holder of a US passport and travelled on it and as such had acknowledged allegiance to a foreign power, which breached the Constitution.

Dabdoub is asking the court to set aside the chief justice's ruling and order that he, Dabdoub, be returned as the duly elected candidate for the constituency in the general election on September 3 last year.

Attorney-at-law Jalil Dabdoub submitted that Vaz elected to retain his status as an American citizen. He said Vaz maintained the status and declared to the world when he travelled on his US passport that he was a person owing and under an acknowledgement of allegiance to the US. He said Vaz was disqualified by virtue of his foreign citizenship and by his voluntary declaration of such an allegiance.

He asked the court to expand the chief justice's ruling. He said she was correct in her ruling in relation to the US passport but she should have gone further to say that Vaz, by his own act, had remained under an allegiance to a foreign power. He then asked the court to give a strict interpretation to the relevant sections of the Constitution.

Null and void

Dabdoub's lawyers also argued that the appeal only concerned who should be the MP. They argued that it was for the court to say whether it should be Vaz, who recorded 944 votes more than Dabdoub, but whose nomination, the chief justice said, was null and void since he was not qualified to be elected; or Dabdoub, who claimed he had the majority of legal votes.

The lawyers argued that electors who voted for Vaz did so in vain because they had knowledge that he was not qualified to be constitutionally elected.

Vaz's lawyers submitted that if the court did not allow the citizens' votes to be counted, it would deny the implicit right of each citizen of Jamaica to participate in the democratic process. They said that if the court found that Vaz was disqualified, there should be a by-election, rather than a court award of the seat to Dabdoub.

Democratic process

Dabdoub's attorneys submitted that all voters, including those who cast their ballots for Vaz, participated in the democratic process as the election was conducted according to law, was not irregular, and the law provided for rejection of votes including votes wasted where the electors voted for a candidate they knew was disqualified.

"What would be undemocratic is for the court to declare the entire election null and void by throwing away and not counting the only legal votes cast in a legal and proper election, namely the votes cast for Dabdoub," the lawyers submitted.

They said the authorities show that it was only the votes of those electors who voted for Vaz, with the knowledge that he was not constitutionally qualified to be elected, that could not be counted.

barbara.gayle@gleanerjm.com.