The ruling of the Appellant Court – upholding the earlier ruling of Chief Justice, Zaila McCalla, in the Vaz Dabdoub case – to my mind speaks volumes and suggests something wrong is going on. Even though Justice McCalla, found that: in the West Portland Constituency one of the two candidates namely, Mr Daryl Vaz, was NOT a qualified candidate as per our constitution, she still ordered a by election. How come?
It is elementary that the ONLY qualified candidate namely, Mr. Abe Dabdoub, would be given the victory as it is done say in sports events.
Justice Panton tells us that the court decision was based ‘partly on’ the ruling of C.J. Kenneth Smith, in the Matterson vs Junor case. Weren’t both candidates Mattison and Junor qualified to contest the election as per our constitution? Educate me. The arguments that: (1) the Director of Election Mr. Walker, ‘erroneously’ declared Mr. Vaz a qualified candidate, should not stand. (2) The idea that the court was not sure/satisfied that sufficient notice was given to the electors of West Portland as to Mr. Vaz’s qualification should not go against Mr. Dabdoub. Mr. Dabdoub has been victimized by our courts. He did all that the law would reasonably expect him or any citizen to do.
From this ruling it is now clear that the “will of the people” to elect their representative (even if the representatives are not qualified) take precedent over the law of the land.
It is puzzling to me that Justice Panton saw it fit, to go out on a limb, using tired, worn out words, from the real injustice meted out to Mr. Dabdoub. Telling those who are critical of the ruling of the (thin skinned) Court of Appeal that: the court would not be “bullied” by anyone and would continue to carry out its duties without fear or favour.” Following the line of the President of the Court of Appeal, I ask, did some person(s) or group try to “bully” the court? Judge Panton might be right that the court will not be “bullied”. However, given the level of corruption in our Society, I ask, ‘can the Court be bribed’? I say absolutely yes!
I it’s is high time we remove that veil of wholesomeness that is place on this elite bunch known as the judiciary. Mayor McKenzie is right (not his exact words) that, today in our country the corrupt and vile in society now hold their heads high while law abiding citizens hold their heads in shame. Failed leadership (FL) equals failed state (FS). We are almost there.
Authnel Reid, authnelreid@optonline.net
There is a huge difference between an Olympic 100m race and a parliamentary election. The determination of a winner in the former is solely up to the efforts of the participants. In the case of the latter it is totally up to the opinion of the “spectators”. If the 100m race was as you think analogous to an election then the possibility exists that the Gold medal could have been given to the eight place finisher if he is the most liked and the efforts of Usain Bolt would count for naught.
To ascertain “the will of the people” is the main purpose of an election. To substitute it with a judicial ruling would be fundamentally undemocratic. The Court made the only sensible decision possible in the circumstances.
The premise of this article is wrong. Vaz was declared eligible to run for office as affirmed by the JA courts. However, there is a contradiction of law that said he could not sit in parliament. This is akin to saying you can buy a house in Jamaica, but you cannot live in it simply because you married a non-commonwealth citizen! Please read the “Post Mortem, Vaz Victory No Sign of Contentment” and “Why the PNP Can and Will Win West Portland” articles in the Abeng for amplification.
This is incorrect. The Constitution says no one who has sworn to a foreign power can run. It was the commissioner of elections that affirmed Vaz’s eligibility which the courts subsequently overturned on Dabdoub’s submission. Mr Vaz gave up his US citizenship to qualify to run. Mr Commissioner made an error and that was addressed in the court’s ruling which noted that although Dabdoub notified the constituency it was more likely the elections official would be believed.
No Mark – There is nothing in the Constitution that says Vaz could not run. The issue revolved around his ability to hold office. Otherwise, Dabdoub would be the only eligible candidate and Rowe would not have replaced him.
“The chief justice also said that on Nomination Day (August 7 last year), Vaz was not qualified to be elected to the House of Representatives. She then declared his nomination invalid, null and void and of no legal effect.” Jamaica Gleaner, April 12, 2008
If that were the case, then Dabdoub was the only eligible candidate and should have been declared the winner. However, it was not; her ruling was in error; and, the relevant provisions that barred Vaz from sitting in Parliament are unconstitutional as they blatantly discriminate against natural and declared JA citizens.
Invariably, the Justices disrespected the people of JA by not releasing their legal arguments. They covered their rears but the power was always in the hands of the PM to call a by-election. The Gleaner’s Editor has been consistent in pointing out this error. The Justices’ analysis is a matter of public record – we need true transparency.
The ruling would also mean that today’s Gleaner article stating the PM will give a voice in Parliament to the Diaspora is a grand fantasy unless the Legislature moves to fix the blatant contradictions that got us into this mess in the first place. However, too many public deals are brokered in private – we need government in the sunshine.
Let me take this legal nexus argument a little bit further, should the US or another country invade and/or occupy JA, they could use our ill-constructed constitution to appoint hostile non-Jamaicans to our Parliament. What then would be our remedy? Consider the Grenada invasion where the US exploited constitutional weaknesses!
It is Section 40 of the Constitution that sets out who is ineligible, not an Act of Parliament or a court ruling, so to argue that it is unconstitutional is a stretch.
Nuff respect to you Mark; however, I have to provide the relevant Jamaica Constitution section in this debate. Just like in preaching, you can’t just take a verse and exegete it without looking at prior verses or the historical and social context that it was written in. Therefore, let us examine the qualification provision of Section 39 which states that
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. a Commonwealth citizen of the age of twenty-one years or upwards; and
b. has been ordinarily resident in Jamaica for the immediately preceding twelve 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.
From Section 39, Vaz was without a doubt qualified to “run” for office. Therefore, Danville Walker did his job correctly by properly certifying Vaz and all other applicants in question, as being properly qualified to run for office. However, Section 40, subsection 2, brings in to contradiction the prior sections by stating that a duly elected candidate cannot “hold” office if they are a non-commonwealth dual national.
Going further back to Section 38, the “right to vote” is “tied” to the “right to run” for office, to the extent the Section 38, subsection 2 firmly states that
(2) No election of a member of the House of Representatives shall be called in question on the ground that the law under which that election was conducted was inconsistent with this section.
Therefore, Vaz COULD NOT be disqualified from running, but by vague construction, is barred from sitting in Parliament. What if Vaz was a multi-national, that is born in Britain to Jamaican parents prior to 1962, who became US citizens before he was 18 year old who subsequently added him on their US passport, but he lived with his Jamaica grandparents in JA until adulthood then served his nation for over 20 years?
In this scenario, the constitution trice states he is a declared citizen, but by vague construction, we would deny him his natural right to participate in his government in one instance, having affirmed his right to vote for said government in yet another instance. This is equivalent to attaining a JA driver’s license, then buying a car, but be told you cannot drive your car even though you did not commit a crime or road offence, because it is was manufactured in the US even though it is a British model (e.g., Jaguar).
When a subsection or action contradicts an “entrenched” provision such as that which is declared in Sections 34 to 39, it is in of itself un-constitutional and must be corrected to avoid diminishing or contravening citizens’ rights. This is my core argument, aimed at stimulating critical thinking, which is essential for positive change. We “must” never be afraid to CHALLENGE the Justice’s decisions – they are not gods and they are as imperfect we all are. In a democracy we are all equals, so Power to the People.
Sorry I misled you. It is Section 41 that I should have pointed to earlier. Section 40 sets out broadly who is qualified. Section 41 sets out who is not qualified:
41. (1) No person shall be qualified for election as a member of the House of Representatives who-
. is a member of the Senate;
a. is disqualified for election by any law for the time being in force in Jamaica by reason of his holding, or acting in, any office the functions of which involve any responsibility for, or in connection with, the conduct of any election, or any responsibility for the compilation or revision of any electoral register.
(2) No person shall be qualified to be appointed as a Senator or elected as a member of the House of Representatives who-
b. is, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign Power or State;
There is no need to prolong this. The simple point is whether the Constitution should be amended to allow persons who as adults acknowledge a second non-Commonwealth nationality.
I really do not want to prolong the debate, but Section 41 speaks to vacancies and the relevant subsection sections read as follows,
41. (1) The seat of a member of either House shall become vacant –
a. upon the next dissolution of Parliament after he has been appointed or elected;
OK, yes there are several versions of the Jamaica Constitution floating around. The 2005 version in Georgetown University’s Political Database of the Americas is numbered as you have it. It still does not change that one section sets out broadly who is qualified and the next on what specific grounds one is not qualified.