Dabdoub (Abraham) v Daryl Vaz, Carlton Harris and Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: McCALLA, C.J.
• Judgment Date: 31 October 2008
• Judgment citation (vLex): [2008] 4 JJC 1101
• Court: Supreme Court (Jamaica)
• Date: 31 October 2008

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2007 HCV 03921

BETWEEN

ABRAHAM DABDOUB

CLAIMANT/PETITIONER

AND

DARYL VAZ

1 ^ST RESPONDENT

AND

CARLTON HARRIS

2 ^ND RESPONDENT

AND

THE ATTORNEY GENERAL OF JAMAICA

3 ^RD RESPONDENT

Gayle Nelson, Jaleel Dabdoub and Winston Taylor instructed by Gayle Nelson & Company for the Claimant/Petitioner

Ransford Braham and Mrs. Suzanne Risden-Foster instructed by Messrs Livingston, Alexander & Levy for the First Respondent

Mrs. Nicole Foster-Pusey and Miss Simone Pearson instructed by the Director of State Proceedings for the Second and Third Respondents

ELECTION PETITION - Candidate - Whether qualified to be elected to House of Representatives - Whether nomination null and void

ELECTION PETITION -

McCALLA, C.J

INTRODUCTION

1 On October 1, 2007 the claimant Abraham Dabdoub (the petitioner) filed an Election Petition by way of a Fixed Date Claim Form in which he seeks reliefs against Daryl Vaz (the first respondent) as well as Carlton Harris (the second respondent) and the Attorney General (the third respondent).

The claim arose out of the General Elections which were held in Jamaica on September 3, 2007. Candidates were nominated in all 60 constituencies. The first respondent was nominated on August 7, 2007 as the candidate for the Jamaica Labour Party and the petitioner was the candidate for the People's National Party. They were contestants in the constituency of West Portland. The first respondent was declared the winner and was sworn in as a member of the House of Representatives. The second respondent was the Returning Officer for that constituency. The third respondent was sued pursuant to the provisions of the Crown Proceedings Act.

The petitioner seeks the following reliefs:

The relief claimed at 6 above was not pursued.

The main issue before this Court for determination is whether or not having regard to the provisions of Section 40(2)(a) of the Jamaican Constitution the first respondent is qualified to be elected to the House of Representatives.

The petitioner contends that the first respondent is not so qualified as he is a citizen of the United States of America, a foreign Power, and is under an acknowledgement of allegiance, obedience or adherence to that country having applied for, renewed and travelled on his United States passport to various countries noted in it, before and after his nomination. The petitioner is also contending that as the first respondent is not qualified to sit in the House of Representatives votes cast for him have been wasted or thrown away and the petitioner is entitled to be returned to the House of Representatives as the duly elected Member of Parliament for West Portland.

The first respondent was born in Jamaica. His mother is a United States citizen and she registered his birth at the United States Embassy in Jamaica and as a child he was added to his mother's passport. He contends that he has never taken an oath of allegiance to the United States of America and is not, by virtue of his own act under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State.

Constitutional Provisions for Qualification and Disqualification

Section 39 of the Jamaican Constitution sets out the qualification to be appointed as a Senator or elected as a member of the House of Representatives as follows:-

"Subject to the provisions of section 40 of this Constitution, any person who at the time of his appointment or nomination for election —

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".

Section 40 of the Constitution sets out all the disqualifications for membership in the Houses of Parliament. The section is reproduced hereunder in part as follows:-

Section 40 (2) enumerates a number of persons who are disqualified for membership in the Houses of Parliament.

Section 41 deals with the circumstances in which the seat of a member of either House becomes vacant. The first respondent has been sworn in as a member of Parliament but this section is not applicable since the Election Petition challenges the first respondent's qualification to be elected on the basis of section 40 (2) (a) of the Constitution.

Section 44 of the Constitution makes provision for the determination of the question relating to the validity of the election or appointment to the House of Representatives or the Senate or whether a member has vacated his seat in either House.

The issue of the qualification of the first respondent for membership in the House of Representatives is dependent on the answer to the question as to whether or not the first respondent is "by virtue of his own act" under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State and therefore not qualified to be elected to the House of Representatives, having regard to the provisions of section 40(2) (a) of the Constitution.

If the Court determines that the first respondent is not qualified then the question arises as to whether or not notice of disqualification was given to the electors of the constituency of West Portland. If such notice was given then the petitioner would be entitled to be returned as the duly elected Member of Parliament for that constituency. If notice as required by law was not given then the electors of the constituency would be entitled to choose their representative in a by-election.

The Interpretation of the Constitutional Provisions

In their submissions learned Counsel for the petitioner and the first respondent made reference to the legislative historical background against which the Court should consider the interpretation of section 40(2)(a) of the Constitution.

Mr. Gayle Nelson, Counsel for the petitioner and Mr. Ransford Braham Counsel for the first respondent in their respective submissions have urged that the interpretation of Section 40(2) (a) is supported by history.

The petitioner traced the history of the section going as far back as the United Kingdom Act of Settlement in 1701, the Canadian Union Act of 1840 and the British North American Act 1867 which used words such as "declaration" "acknowledgement" and "allegiance". He made reference to section 44 (i) of the Australian Constitution of 1901 which states:-

"any person who —

is under any acknowledgment of allegiance, obedience or adherence to a foreign power, or is a subject or a citizen, or entitled to the rights and privileges of a subject or citizen of a foreign power....... shall be incapable of being chosen or of sitting as a Senator or member of the House of Representatives."

Mr. Nelson alluded to the interpretation placed on the words "is under any acknowledgment of allegiance, obedience or adherence to a foreign power" by decisions of the Australian Court as well as authors who have written on the subject. He referred to an article by Michael Pryles titled "Nationality Qualifications for Members of Parliament" published in (1982) 8 Monash University Law Review 163, 177 in arguing that "allegiance" may refer to allegiance owed by virtue of having formal citizenship of a foreign country but "allegiance" can also be demonstrated by other acts without even taking formal citizenship.

He relied on the Australian case of Sykes v Cleary (No. 2) (1992) 176 CLR 77, 127 in submitting that the words "is under any acknowledgement of allegiance obedience or adherence to a foreign power" involve an element of acceptance or at least acquiescence on the part of the relevant person.

He submitted that an "acknowledgement of allegiance to a foreign power" includes having citizenship and holding a foreign passport and said that in the present case the first respondent has made an acknowledgement of allegiance both by positive acts and through acquiescence. Citing numerous articles from the Australian jurisdiction, Mr. Nelson contended that the words "acknowledgement of allegiance to a foreign power" include being a subject or citizen of a foreign power and being someone entitled to the rights or privileges of a subject or citizen of a foreign power.

Counsel made reference to the relevant Constitutional provisions of other Jurisdictions including that of the Republic of Trinidad and Tobago where section 48(1) of that Constitution is similar to section 40(2)(a) of the Jamaican Constitution.

He finds support in the Judgment of Nelson J.A. in Chaitan v Attorney General (2001) 63 WIR 244 at 377 where he states:

"In my view the phrase under a declaration of allegiance to such a country in section 48 (1) (a) of the Constitution embraces the three categories referred to by Brennan J .... (in Sykes vs Cleary ) (supra)."

Mr. Ransford Braham Counsel for the first respondent, drew the Court's attention to section 8 of the Jamaican Constitution as it stood prior to an amendment in 1999, whereby persons who voluntarily acquired citizenship or took advantage of any right belonging to a citizen of a foreign country in that country, could lose their citizenship at the discretion of the Governor General. Section 3(1) of the Constitution provides that a person may become a citizen of Jamaica by birth, registration or descent. The Jamaican Constitution as amended clearly allows dual nationality by virtue of section 8 which states:

"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."

He urged that section 40(2) (a) should be interpreted against that background as although it is accepted that a person who is a citizen of a country other than Jamaica owes allegiance adherence and/or obedience to that country, section 40 (2) (a) of the Constitution should not be interpreted to refer to or include the allegiance adherence or obedience...