Could the former AG have gotten this point wrong?

[Willi]

The PM's referenda error
Published: Thursday | May 28, 2009


The Editor, Sir:
It is difficult to disagree with the thrust of your editorial of Tuesday, May 26, 2009: 'Imperative of debate on dual citizenship'. Allow me, however, to comment on one matter.

You say that the Opposition People's National Party "has a point - that there are other outstanding constitutional issues to be dealt with and ought to be dealt with. But this one, we feel, is a priority."

One could hardly doubt that this issue is indeed a priority. However, as your editorial correctly states, any change to the constitutional provision governing qualification to sit in the Parliament requires approval by the people of Jamaica in a referendum.

I ask the question, therefore: How could this issue be the subject of discussion by the two political parties without a contemplation of the other substantially agreed proposals for reform and, in particular, those that can only be changed by means of a referendum?

Took PNP to task

I ask this question because, last Thursday, the prime minister, at a press conference to announce the date for the by-election in North East St Catherine, sought to take the PNP and its leader to task for insisting on all the issues being considered together, when some of the other reform matters "required referenda" for any change to be made.

He has publicly stated, more than once, that the provision governing qualification can be changed by the affirmative vote of all the Government members of Parliament. He must obviously have still been labouring under that mistaken impression last Thursday, for the clear inference to be drawn from his statement was that there is no need for any other type of vote, much less the requirement of a referendum.

The opposition leader has already pointed out this requirement to the prime minister. Now that your editorial has done so once again, perhaps he has now grasped the reason why the PNP is insisting that all the issues must be discussed together. After all, financial considerations would dictate that such discussions must contemplate whether one referendum would suffice for the agreed changes to be made.

I am, etc.,

A.J. NICHOLSON

Opposition Spokesman on

Justice


A.J. got it wrong
Published: Friday | May 29, 2009



( L - R ) Golding, Nicholson
The Editor, Sir:

A.J. Nicholson, QC, continues to insist that I erred in suggesting that the dual-citizenship dilemma could be dealt with by a two-thirds majority in Parliament. His contention is based on the fact that Section 39 of the Constitution is deeply entrenched and any amendment thereto would have to be approved by a vote of the electorate. That much is correct.

However, section 39 deals only with the qualification for membership in Parliament, and all it says is that a person must be a Commonwealth citizen (which, by virtue of Section 9, includes Jamaican citizenship) and must have been ordinarily resident in Jamaica for a minimum of 12 months immediately preceding nomination. As far as I know, all 60 current members of parliament satisfy that requirement and, therefore, no question of eligibility arises on that count.

Basis of disqualification

It is Section 40 which prescribes the basis of disqualification for election to Parliament and constitutes the grounds on which the court ruled in the cases of Daryl Vaz and Gregory Mair. Section 40 is not deeply entrenched and could be amended by a two-thirds majority in each House of Parliament.

The question that would have to be addressed is what would be an appropriate amendment. That is where the argument would arise, not on the question of whether Parliament has the competence to amend Section 40.

I am, etc.,

BRUCE GOLDING

Prime Minister

[Gamma]

i wonder what makes 39 deeply entrenched and 40 not deeply entrenched?

[Willi]

PART 1 - Composition of Parliament

34. Establishment of Parliament.

34. There shall be a Parliament of Jamaica which shall consist of Her Majesty, a Senate and a House
of Representatives.

35. Senate.

35. (1) The Senate shall consist of twenty-one persons who being qualified for appointment as
Senators in accordance with this Constitution have been so appointed in accordance with the
provisions of this section.

(2) Thirteen Senators shall be appointed by the Governor****General, acting in accordance with the
advice of the Prime Minister, by instrument under the Broad Seal.

(3) The remaining eight Senators shall be appointed by the Governor****General, acting in accordance
with the advice of the Leader of the Opposition, by instrument under the Broad Seal.

36. House of Representatives.

36. The House of Representatives shall consist of persons who, being qualified for election as
members in accordance with the provisions of this Constitution, have been so elected in the manner
provided by or under any law for the time being in force in Jamaica and who shall be known as
"Members of Parliament".

37. Qualifications and disqualification for electors.

37. (1) Subject to the provisions of subsection (2) of this section a person shall be qualified to be
registered as an elector for elections to the House of Representatives if, and shall not be so qualified
unless, he is -

(a) a citizen of Jamaica resident in Jamaica at the date of registration, or

(b) a Commonwealth citizen (other than a citizen of Jamaica) who is resident in Jamaica at the date of
registration and who has been so resident for at least twelve months immediately preceding that date,
and has attained the prescribed age.

(2) No person shall be qualified to be registered as an elector for elections to the House of
Representatives who -

(a) is under sentence of death imposed on him by a court in any part of the Commonwealth, or is
serving a sentence of imprisonment (by whatever name called) of or exceeding six months imposed
on him by such a court or substituted by competent authority for some other sentence imposed on
him by such a court or is under such a sentence of imprisonment the execution of which is suspended;
or

(b) is disqualified for such registration by or under any law for the time being in force in Jamaica
because he has been convicted of any offence connected with the election of members of the House
of Representatives or of any local authority or body for local purposes; or

(c) is, under any law for the time being in force in Jamaica, certified to be insane or otherwise
adjudged to be of unsound mind or detained as a criminal lunatic; or

(d) is disqualified for such registration 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 responsibility for, or in connection
with the election in the constituency in which such person would otherwise be entitled to vote.

(3) In this section -

"the prescribed age" means -

(a) the age of twenty-one years, or

(b) such other age being less than the age of twenty-one years but not less than the age of eighteen
years that may from time to time be prescribed by a special Act; and "a special Act" means an Act of
Parliament the Bill for which has been passed by both Houses and at the final vote thereon in each
House has been supported by the votes of a majority of all the members of that House.

(4) A special Act may be repealed or amended by another special Act and in no other manner.

38. Electoral law.

38. (1) Any law for the time being providing for the election of members of the House of
Representatives shall -

(a) contain provisions designed to ensure that so far as is practicable any person entitled to vote at an
election of members of the House of Representatives shall have a reasonable opportunity of so
voting; and

(b) contain provisions relating to the conduct of elections of members of the House of
Representatives, including provisions relating to the identification of electors, designed to ensure that
as far as is practicable no person shall vote at an election of a member of the House of
Representatives-

(i) who is not entitled to vote; or

(ii) when he is not entitled to vote; or

(iii) where he is not entitled to vote:

Provided that this paragraph shall not come into operation until the first day of January 1964.

(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.

39. Qualification for membership of Senate and House of Representatives.

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 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.

40. Disqualification for membership of Senate and House of Representatives.

40. (1) No person shall be qualified for election as a member of the House of Representatives who -

(a) is a member of the Senate;

(b) 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 -

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

(b) holds or is acting in any public office or the office of Judge of the Supreme Court or Judge of the
Court of Appeal or, save as is otherwise provided by Parliament, is a member of a defence force;

(c) is a party to, or a partner in a firm or a director or manager of a company which to his knowledge
is a party to, any contract with the Government of Jamaica for or on account of the public service,
and has not -

(i) in the case of appointment as a Senator, by informing the Governor****General; or

(ii) in the case of election as a member of the House of Representatives, by publishing a notice in the
Gazette within one month before the day of election, previously disclosed the nature of such contract
and his interest or the interest of such firm or company therein;

(d) subject to the provisions of subsection (3) of this section, is under sentence of death imposed on
him by a court in any part of the Commonwealth, or is serving a sentence of imprisonment (by
whatever name called) of or exceeding six months imposed on him by such a court or substituted by
competent authority for some other sentence imposed on him by such a court or is under such a
sentence of imprisonment the execution of which is suspended;

(e) has been adjudged or otherwise declared bankrupt under any law in force in any part of the
Commonwealth and has not been discharged;

(f) is, under any law for the time being in force in Jamaica, certified to be insane or otherwise
adjudged to be of unsound mind or detained as a criminal lunatic; or

(g) is disqualified for membership of the House of Representatives by or under any law for the time
being in force in Jamaica because he has been convicted of any offence connected with the election
of members of that House or of any local authority or body for local purposes.

(3) For the purposes of paragraph (d) of subsection (2) of this section -

(a) where a person is serving two or more sentences of imprisonment that are required to be served
consecutively he shall, throughout the whole time during which he so serves, be regarded as serving a
sentence of or exceeding six months if (but not unless) any one of those sentences amounts to or
exceeds that term; and

(b) no account shall be taken of a sentence of imprisonment imposed as an alternative to or in default
of the payment of a fine.

41.Tenure of office of Senators and Members of House of Representatives.

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;

(b) if he resigns his seat;

(c) if he is absent from sittings of the House for such period and in such circumstances as may be
prescribed in the Standing Orders of the House;

(d) if he ceases to be a Commonwealth citizen or takes any oath or makes any declaration or
acknowledgment of allegiance, obedience or adherence to any foreign Power or State or does,
concurs in or adopts any act done with the intention that he shall become a subject or citizen of any
foreign Power or State;

(e) if any circumstances arise that, if he were not a member of the House, would cause him to be
disqualified for appointment or election as such by virtue of paragraph (b) or (g) of subsection (2) of
section 40 of this Constitution;

(f) if he becomes a party to any contract with the Government of Jamaica for or on account of the
public service:

Provided that -

(i) if in the circumstances it appears to the Senate (in the case of a Senator) or to the House of
Representatives (in the case of a member of that House) to be just so to do, the Senate, or the
House of Representatives (as the case may be) may exempt any member from vacating his seat
under the provisions of this paragraph, if that member, before becoming a party to such contract as
aforesaid, discloses to the Senate or to the House of Representatives (as the case may be) the nature
of such contract and his interest therein;

(ii) if proceedings are taken under section 44 of this Constitution to determine whether a Senator or a
member of the House of Representatives has vacated his seat under the provisions of this paragraph
he shall be declared by the Court not to have vacated his seat if he establishes to the satisfaction of
the Court that he, acting reasonably, was not aware that he was or had become a party to such
contract;

(g) if any firm in which he is a partner, or any company of which he is a director or manager,
becomes a party to any contract with the Government of Jamaica for or on account of the public
service or if he becomes a partner in a firm, or a director or manager of a company which is a party
to any such contract:

Provided that -

(i) if in the circumstances it appears to the Senate (in the case of a Senator) or to the House of
Representatives (in the case of a member of that House) to be just so to do, the Senate or the House
of Representatives (as the case may be) may exempt any Senator or member from vacating his seat
under the provisions of this paragraph if that Senator or member, before or as soon as practicable
after becoming interested in such contract (whether as a partner in a firm or as director or manager of
a company), discloses to the Senate or to the House of Representatives (as the case may be) the
nature of such contract and the interest of such firm or company therein;

(ii) if proceedings are taken under section 44 of this Constitution to determine whether a Senator or a
member of the House of Representatives has vacated his seat under the provisions of this paragraph,
he shall be declared by the Court not to have vacated his seat if he establishes to the satisfaction of
the Court that he, acting reasonably, was not aware that the firm or company was or had become a
party to such contract.

(2) The seat of a member of the House of Representatives shall become vacant if -

(a) he is appointed as a Senator; or

(b) any circumstances arise that, if he were not a member of the House of Representatives, would
cause him to be disqualified for election as such by virtue of paragraph (b) of subsection (1) of
section 40 of this Constitution.

(3) (a) Subject to the provisions of paragraph (b) of this subsection, if any member of either House is
sentenced by a court in any part of the Commonwealth to death or to imprisonment (by whatever
name called) for a term of or exceeding six months, he shall forthwith cease to exercise any of his
functions as a member and his seat in the House shall become vacant at the expiration of a period of
thirty days thereafter:

Provided that the President or the Speaker, as the case may be, may at the request of the member,
from time to time extend that period for further periods of thirty days to enable the member to pursue
any appeal in respect of his conviction or sentence, so, however, that extensions of time exceeding in
the aggregate three hundred and thirty days shall not be given without the approval, signified by
resolution, of the House concerned.

(b) If at any time before the member vacates his seat he is granted a free pardon or his conviction is
set aside or his sentence is reduced to a term of imprisonment of less than six months or a punishment
other than imprisonment is substituted, his seat shall not become vacant under paragraph (a) of this
subsection and he may resume the exercise of his functions as a member.

(c) For the purposes of this subsection -

(i) where a person is sentenced to two or more terms of imprisonment that are required to be served
consecutively, account shall be taken only of any of those terms that amounts to or exceeds six
months; and

(ii) no account shall be taken of a sentence of imprisonment imposed as an alternative to or in default
of the payment of a fine.

(4) (a) Subject to the provisions of paragraph (b) of this subsection, if any member of either House is
adjudged or declared bankrupt, certified to be insane, adjudged to be of unsound mind or detained
as a criminal lunatic, he shall forthwith cease to exercise any of his functions as a member and his seat
in the House shall become vacant at the expiration of a period of thirty days thereafter:

Provided that the President or the Speaker, as the case may be, may at the request of the member,
from time to time extend that period for further periods of thirty days to enable the member to pursue
any appeal in respect of any such adjudication, certification or detention, so, however, that
extensions of time exceeding in the aggregate one hundred and eighty days shall not be given without
the approval, signified by resolution, of the House concerned.

(b) If at any time before the member vacates his seat any such adjudication or certification is set
aside or the detention of the member as a criminal lunatic is terminated, his seat shall not become
vacant under paragraph (a) of this subsection and he may resume the exercise of his functions as a
member.

42. President and Deputy President of Senate.

42. (1) When the Senate first meets after any dissolution of Parliament and before it proceeds to the
despatch of any other business, it shall elect a Senator, not being a Minister or a Parliamentary
Secretary, to be President; and whenever the office of President is vacant otherwise than by reason
of a dissolution of Parliament, the Senate shall not later than its second sitting after the vacancy has
arisen, elect any other such Senator to fill that office.

(2) Upon the President's being elected and before he enters upon the duties of his office, he shall
(unless he has already done so in accordance with the provisions of section 62 of this Constitution)
make and subscribe before the Senate the oath of allegiance.

(3) When the Senate first meets after any dissolution of Parliament, it shall, as soon as practicable,
elect one of its members, not being a Minister or a Parliamentary Secretary, to be Deputy President;
and whenever the office of Deputy President becomes vacant, the Senate shall, as soon as
convenient, elect another such member to fill that office.

(4) A person shall vacate the office of President or Deputy President -

(a) if he resigns that office;

(b) if be ceases to be a member of the Senate:

Provided that if the President or Deputy President ceases to be a member by reason of a dissolution
of Parliament, he shall be deemed to continue in office for the purposes of section 47 of this
Constitution until he resigns his office or vacates it otherwise than by reason of a dissolution of
Parliament or until the office of President or, as the case may be, of Deputy President is filled;

(c) if, under the provisions of subsection (3) or subsection (4) of section 41 of this Constitution, he is
required to cease to exercise any of his functions as a member of the Senate;

(d) if he is appointed to be a Minister or a Parliamentary Secretary; or

(e) in the case of the Deputy President, if he is elected to be President.

43. Speaker and Deputy President of Senate.

43. (1) When the House of Representatives first meets after any dissolution of Parliament, and before
it proceeds to the despatch of any other business, it shall elect one of its members, not being a
Minister or a Parliamentary Secretary, to be Speaker; and whenever the office of Speaker is vacant
otherwise than by reason of a dissolution of Parliament, the House of Representatives shall, not later
than its second sitting after the vacancy has arisen, elect another such member to fill that office.

(2) Upon the Speaker's being elected and before he enters upon the duties of his office, he shall
(unless he has already done so in accordance with the provisions of section 62 of this Constitution)
make and subscribe before the House of Representatives the oath of allegiance.

(3) When the House of Representatives first meets after any dissolution of Parliament it shall, as soon
as practicable, elect one of its members, not being a Minister or a Parliamentary Secretary, to be
Deputy Speaker; and whenever the office of Deputy Speaker becomes vacant, the House of
Representatives shall, as soon as convenient, elect another such member to fill that office.

(4) A person shall vacate the office of Speaker or Deputy Speaker -

(a) if he resigns that office;

(b) if he ceases to be a member of the House of Representatives:

Provided that if the Speaker or Deputy Speaker ceases to be a member by reason of a dissolution of
Parliament, he shall be deemed to continue in office for the purposes of section 47 of this
Constitution until he resigns his office or vacates it otherwise than by reason of a dissolution of
Parliament or until the office of Speaker or, as the case may be, Deputy Speaker is filled;

(c) if, under the provisions of subsection (3) or subsection (4) of section 41 of this Constitution, he is
required to cease to exercise any of his functions as a member of the House of Representatives;

(d) if he is appointed to be a Minister or a Parliamentary Secretary; or

(e) in the case of the Deputy Speaker, if he is elected to be Speaker.

44. Determination of questions as to membership.

44. (1) Any question whether -

(a) any person has been validly elected or appointed as a member of either House; or

(b) any member of either House has vacated his seat therein or is required, under the provisions of
subsection (3) or subsection (4) of section 41 of this Constitution, to cease to exercise any of his
functions as a member, shall be determined by the Supreme Court or, on appeal, by the Court of
Appeal whose decision shall be final, in accordance with the provisions of any law for the time being
in force in Jamaica and, subject to any such law, in accordance with any directions given in that
behalf by the Chief Justice.

(2) Proceedings for the determination of any question referred to in subsection (1) of this section may
be instituted by any person (including the Attorney****General) and, where such proceedings are
instituted by a person other than the Attorney****General, the Attorney****General if he is not a party
thereto may intervene and (if he intervenes) may appear or be represented therein.

45. Filling of vacancies.

45. (1) (a) Whenever the seat of any member of the Senate becomes vacant, the Governor****General
shall, by instrument under the Broad Seal, appoint to fill the vacancy a person qualified in accordance
with this Constitution for appointment as a Senator.

(b) In making such an appointment the Governor****General shall, in any case where the member
whose seat has become vacant -

(i) was appointed on the advice of the Prime Minister, act in accordance with the advice of the Prime
Minister; and

(ii) was appointed on the advice of the Leader of the Opposition, act in accordance with the advice
of the Leader of the Opposition.

(2) Whenever the seat of any member of the House of Representatives becomes vacant the vacancy
shall be filled by election in the manner provided by or under any Law for the time being in force in
Jamaica.

46. Unqualified persons sitting or voting.

46. (1) Any person who sits or votes in either House knowing or having reasonable ground for
knowing that he is not entitled to do so, shall be liable to a penalty of twenty dollars for each day
upon which he so sits or votes.

(2) Any such penalty shall be recoverable by civil action in the Supreme Court at the suit of the
Attorney-General.

47. Unqualified persons sitting or voting.

47. (1) The offices of Clerk and Deputy Clerk of the Senate are hereby constituted and
appointments to those offices shall be made by the Governor****General, acting on the recommendation
of the President.

(2) The offices of Clerk and Deputy Clerk of the House of Representatives are hereby constituted
and appointments to those offices shall be made by the Governor-General, acting on the
recommendation of the Speaker.

(3) Subject to the provisions of subsection (5) of this section the Clerk shall, unless he sooner resigns
his office, hold office until he attains the age of 65 years or such later age as may, in any particular
case, be prescribed by the Commission appointed under subsection (7) of this section.

(4) Nothing done by the Clerk shall be invalid by reason only that he has attained the age at which he
is required by this section to vacate office.

(5) The Clerk shall be removed from office by the Governor****General if, but shall not be so removed
unless, the House, by a resolution which has received the affirmative vote of not less than two****thirds
of all the members thereof, has resolved that he ought to be so removed for inability to discharge the
functions of his office (whether arising from infirmity of body or mind or any other cause) or for
misbehaviour.

(6) The provisions of subsections (3), (4) and (5) of this section shall apply to the Deputy Clerk as
they apply to the Clerk.

(7) Subject to the provisions of subsections (3), (5), (6) and (9) of this section the terms of service
(including salary and allowances) of the Clerk and Deputy Clerk shall be determined from time to
time by a Commission consisting of the following persons, that is to say: -

(a) the Speaker, as Chairman;

(b) the President; and

(c) the Minister responsible for finance or a person nominated by that Minister to represent him at
any meeting of the Commission.

(8) The salaries and allowances of the Clerk and Deputy Clerk shall be paid out of the Consolidated
Fund and no such salary shall be reduced during the continuance in office of the person to whom it is
payable.

(9) The offices of Clerk and Deputy Clerk shall, for the purposes of sections 40, 41,111, 124, 129,
132,133 and 134 of this Constitution, be deemed to be public offices.

(10) A person who is a public officer may, without ceasing to hold office in the public service, be
appointed, in accordance with the provisions of this section, to the office of Clerk or Deputy Clerk
but -

(a) no such appointment shall be made except with the concurrence of the Governor****General, acting
on the recommendation of the Public Service Commission;

(b) the provisions of subsections (3), (5) and (6) of this section shall, in relation to an officer so
appointed, apply, subject to the provisions of paragraph (d) of this subsection, as respects his service
as Clerk or Deputy Clerk but not as respects his service as a public officer;

(c) an officer so appointed shall not, during his continuance in the office of Clerk or Deputy Clerk,
perform the functions of any public office; and

(d) an officer so appointed may at any time be appointed by the Governor****General, acting on the
advice of the Public Service Commission, to assume or resume the functions of a public office and he
shall thereupon vacate his office as Clerk or Deputy Clerk, but no appointment under this paragraph
shall be made without the concurrence of the President or the Speaker, as the case may be.

(11) The Governor****General, acting on the recommendation of the Minister responsible for finance
after that Minister has consulted the Clerk, may from time to time prescribe, by notice published in
the Gazette, the offices (other than the office of Deputy Clerk) which are to constitute the staff of the
Clerk and may likewise prescribe which of those offices are subordinate offices.

(12) Power to make appointments to any office for the time being prescribed under subsection (11)
of this section as a subordinate office on the staff of the Clerk and to remove and to exercise
disciplinary control over persons holding or acting in any such offices is hereby vested in the Clerk.

(13) Before the Public Service Commission advises the Governor****General under subsection (1) of
section 125 of this Constitution -

(a) that any person should be appointed to any office on the staff of the Clerk (other than the office
of Deputy Clerk and any subordinate office thereon);

(b) that any person holding or acting in any such office should be appointed to any other public
office; or

(c) that any person holding or acting in any such office should be removed or that any penalty should
be imposed on him by way of disciplinary control, the Commission shall consult the Clerk.

(14) Nothing in this section shall be construed as preventing -

(a) the appointment of one person to the offices of Clerk of the Senate and Clerk of the House of
Representatives; or

(b) the appointment of one person to the offices of Deputy Clerk of the Senate and Deputy Clerk of
the House of Representatives; or

(c) the appointment of one person to any other office on the staff of the Clerk of the Senate and any
other office on the staff of the Clerk of the House of Representatives, and where any person is so
appointed to two offices, the foregoing provisions of this section shall apply in relation to him in
respect of each such office separately.

(15) The functions conferred by this section on the President shall, if there is no person holding the
office of President or if the President is absent from Jamaica or is otherwise unable to perform those
functions, be performed by the Deputy President and the functions conferred by this section on the
Speaker shall, if there is no person holding the office of Speaker or if the Speaker is absent from
Jamaica or is otherwise unable to perform those functions, be performed by the Deputy Speaker.

PART 2 - Powers and Procedure of Parliament

48. Power to make laws.

48. (1) Subject to the provisions of this Constitution, Parliament may make laws for the peace, order
and good government of Jamaica.

(2) Without prejudice to the generality of subsection (1) and subject to the provisions of subsections
(3), (4) and (5) of this section Parliament may by law determine the privileges, immunities and
powers of the two Houses and the members thereof.

(3) No civil or criminal proceedings may be instituted against any member of either House for words
spoken before, or written in a report to, the House of which he is a member or to a committee
thereof or to any joint committee of both Houses or by reason of any matter or thing brought by him
therein by petition, bill, resolution, motion or otherwise.

(4) For the duration of any session of both Houses shall enjoy freedom from arrest for any civil debt
except a debt the contraction of which constitutes a criminal offence.

(5) No process issued by any court in the exercise of its civil jurisdiction shall be served or executed
within the precincts of either House while such House is sitting or through the President or the
Speaker, the Clerk or any officer of either House.

49. Alteration of this Constitution.

49. (1) Subject to the provisions of this section Parliament may by Act of Parliament passed by both
Houses alter any of the provisions of this Constitution or (in so far as it forms part of the law of
Jamaica) any of the provisions of the Jamaica Independence Act, 1962.

(2) In so far as it alters -

(a) sections 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, subsection (3) of section 48,
sections 66, 67, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 94, subsections (2), (3), (4), (5), (6) or (7)
of section 96, sections 97, 98, 99, subsections (3), (4), (5), (6), (7), (8) or (9) of section 100,
sections 101, 103, 104, 105, subsections (3), (4), (5), (6), (7), (8) or (9) of section 106,
subsections (1), (2), (4), (5), (6), (7), (8), (9) or (10) of section 111, sections 112, 113, 114, 116,
117, 118, 119, 120, subsections (2), (3), (4), (5), (6) or (7) of section 121, sections 122, 124, 125,
subsection (1) of section 126, sections 127, 129, 130, 131, 135 or 136 or the Second or Third
Schedule to this Constitution; or

(b) section 1 of this Constitution in its application to any of the provisions specified in paragraph (a)
of this subsection, a Bill for an Act of Parliament under this section shall not be submitted to the
Governor****General for his assent unless a period of three months has elapsed between the
introduction of the Bill into the House of Representatives and the commencement of the first debate
on the whole text of that Bill in that House and a further period of three months has elapsed between
the conclusion of that debate and the passing of that Bill by that House.

(3) In so far as it alters -

(a) this section;

(b) sections 2, 34, 35, 36, 39, subsection (2) of section 63, subsections (2), (3) or (5) of section 64,
section 65, or subsection (1) of section 68 of this Constitution;

(c) section 1 of this Constitution in its application to any of the provisions specified in paragraph (a)
or (b) of this subsection; or

(d) any of the provisions of the Jamaica Independence Act, 1962, a Bill for an Act of Parliament
under this section shall not be submitted to the Governor****General for his assent unless -

(i) a period of three months has elapsed between the introduction of the Bill into the House of
Representatives and the commencement of the first debate on the whole text of that Bill in that House
and a further period of three months has elapsed between the conclusion of that debate and the
passing of that Bill by that House, and

(ii) subject to the provisions of subsection (6) of this section, the Bill, not less than two nor more than
six months after its passage through both Houses, has been submitted to the electors qualified to vote
for the election of members of the House of Representatives and, on a vote taken in such manner as
Parliament may prescribe, the majority of the electors voting have approved the Bill.

(4) A Bill for an Act of Parliament under this section shall not be deemed to be passed in either
House unless at the final vote thereon it is supported -

(a) in the case of a Bill which alters any of the provisions specified in subsection (2) or subsection (3)
of this section by the votes of not less than two-thirds of all the members of that House, or

(b) in any other case by the votes of a majority of all the members of that House.

(5) If a Bill for an Act of Parliament which alters any of the provisions specified in subsection (2) of
this section is passed by the House of Representatives -

(a) twice in the same session in the manner prescribed by subsection (2) and paragraph (a) of
subsection (4) of this section and having been sent to the Senate on the first occasion at least seven
months before the end of the session and on the second occasion at least one month before the end
of the session, is rejected the Senate on each occasion, or

(b) in two successive sessions (whether of the same Parliament or not) in the manner prescribed by
subsection (2) and paragraph (a) of subsection (4) of this section and, having been sent to the Senate
in each of those sessions at least one month before the end of the session, the second occasion being
at least six months after the first occasion, is rejected by the Senate in each of those sessions, that Bill
may, not less than two nor more than six months after its rejection by the Senate for the second time,
be submitted to the electors qualified to vote for the election of members of the House of
Representatives and, if on a vote taken in such manner as Parliament may prescribe, three****fifths of
the electors voting approve the Bill, the Bill may be presented to the Governor-General for assent.

(6) If a Bill for an Act of Parliament which alters any of the provisions specified in subsection (3) of
this section is passed by the House of Representatives-

(a) twice in the same session in the manner prescribed by subsection (3) and paragraph (a) of
subsection (4) of this section and having been sent to the Senate on the first occasion at least seven
months before the end of the session and on the second occasion at least one month before the end
of the session, is rejected by the Senate on each occasion, or

(b) in two successive sessions (whether of the same Parliament or not) in the manner prescribed by
subsection (3) and paragraph (a) of subsection (4) of this section and, having been vent to the Senate
in each of those sessions at least one month before the end of the session, the second occasion being
at least six months after the first occasion, is rejected by the Senate in each of those sessions, that Bill
may, not less than two nor more than six months after its rejection by the Senate for the second time,
be submitted to the electors qualified to vote for the election of members of the House of
Representatives and, if on a vote taken in such manner as Parliament may prescribe, two-thirds of
the electors voting approve the Bill, the Bill may be presented to the Governor****General for assent.

(7) For the purposes of subsection (5) and subsection (6) of this section a Bill shall be deemed to be
rejected by the Senate if -

(a) it is not passed by the Senate in the manner prescribed by paragraph (a) of subsection (4) of this
section within one month after it is sent to that House; or

(b) it is passed by the Senate in the manner so prescribed with any amendment which is not agreed
to by the House of Representatives.

(8) For the purposes of subsection (5) and subsection (6) of this section a Bill that is sent to the
Senate from the House of Representatives in any session shall be deemed to be the same Bill as the
former Bill sent to the Senate in the same or in the preceding session if, when it is sent to the Senate,
it is identical with the former Bill or contains only such alterations as are specified by the Speaker to
be necessary owing to the time that has elapsed since the date of the former Bill or to represent any
amendments which have been made by the Senate in the former Bill.

(9) In this section -

(a) reference to any of the provisions of this Constitution or the Jamaica Independence Act, 1962,
includes references to any law that alters that provision; and

(b) "alter" includes amend, modify, re****enact with or without amendment or modification, make
different provision in lieu of, suspend, repeal or add to.

[Willi]

Dual but unequal: the citizenship debate
published: Sunday | September 23, 2007

Dr. Paul Ashley, Contributor


Ashley

Some Jamaicans enjoy the protection and privileges of being citizens of other countries. Most are citizens of Jamaica only. Indeed, many with citizenship of more than one state - and even as many as two more - have played critical roles in the development of Jamaica. In reality, the Jamaican state recognises that Jamaican citizens may be citizens of other states but does not prescribe any limitations on the number.

However, the Constitution of Jamaica prescribes certain limitations on those enjoying multiple citizenship in so far as their participation in the Parliament goes. Such limitations - termed 'qualification' and 'disqualification' - are specifically stated in Section 39 and Section 40, respectively.

Section 39:

The individuals seeking membership in the Senate and House of Representatives must be (a) a Commonwealth citizen of at least 21 years old; and (b) has been ordinarily resident in Jamaica for 12 months prior to appointment to the Senate or nomination for election to the House of Representatives.

However, the individual concerned must not fall within the disqualification clauses specified in Section 40.

Section 40:

There are a number of conditions specified which would cause this adult Commonwealth citizen resident in Jamaica for the preceding 12 months to be disqualified from being appointed to the Senate or nominated for election to the House of Representatives. These include holding public office such as Judge of the Supreme Court, Judge of the Court of Appeal, member of a defence force; adjudged or otherwise declared bankrupt; certified insane; serving a sentence of six months or more; convicted of election related offence, etc.

For the purposes of this discussion, focus is confined to dual citizenship debate. Section 40 (2) states:

"(2) No person shall be qualified to be appointed as a Senator or a Member of the House of Representatives who -

(a) Is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State:'

ANALYSIS

Section 9 gives meaning to the classification 'Commonwealth Citizens'. Indeed, such was deemed necessary in order to supplement the capabilities of the newly emerging sovereign state. The pool of expertise from the Commonwealth family was harnessed. Many of the officials of these ex-colonial territories hold British passports.

The primary operative condition is "by virtue of his own act". The individual must have been capable of doing the act and has chosen so to do. Moreover, that condition is not operative if it was occasioned by another, by operation of law, or by conditions outside the control/decision of the individual concerned.

The condition outlined is not confined to the taking of an oath of allegiance - a necessary requirement of applications for citizenship. That acknowledgement of allegiance, obedience or adherence may be occasioned by membership in the defence force, holding important public office, national security or official representation roles.

A 'foreign Power or State' is any Power or State other than Jamaica. This construction is no doubt controversial it is settled in international law and appointed by a number of decided cases. The controversy is motivated primarily because it casts a wider net since it would include those who are holders of citizenship of Commonwealth states.

'Commonwealth' not 'Foreign'

Some proponents of the view that Commonwealth states are not included in the term 'foreign Power or State' seek to advance the following:

Chapter II of the Constitution of Jamaica deals with citizenship. Section 12 gives the following interpretation:

'Foreign country' means a country (other than the Republic of Ireland) that is not part of the Commonwealth;

Hence, the term 'foreign Power or State' should be construed in accordance with that of 'foreign country'.

As mentioned before, the proponents have yet to produce any judicial interpretation to substantiate their position. Moreover, it may be convenient to ignore that

(a) the section being relied upon begins 'In this Chapter -'. The interpretations are specific to Chapter II;

(b) 'foreign country' is not necessarily synonymous with 'foreign State or Power.'

In relation to those holding Canadian, British or even Barbadian citizenship in addition to their Jamaican citizenship, it is being argued that they have sworn allegiance to the same sovereign power - Her Majesty. Hence, these Commonwealth countries with Her Majesty as Head of State cannot be classified as 'foreign'.

legislative and governmental matters

The argument comforting to the holders of such citizenship - fails to surmount a basic constitutional reality. With regard to legislative and governmental matters, the head of state of say Jamaica is the Queen of Jamaica; the head of state of Australia is the Queen of Australia; the head of state of Canada is the Queen of Canada. Her Majesty occupies a number of distinct legal personalities and each in its exercise of its sovereignty has no legal consequences for the other. For example, for Jamaica, the United Kingdom would be classified as 'a foreign power', so too would Canada and Barbados. Furthermore, each of these sovereign states has its own rules in respect of nationality and their citizens owe different allegiances.

To put the argument here being advanced into sharp relief: If an adult Jamaican citizen by virtue of his own act acquires the nationality of any other State - be it Commonwealth or otherwise - he is disqualified. However, an adult Commonwealth citizen living in Jamaica for a year satisfies the condition of Section 39, whether or not he acquires Jamaican citizenship.

While recognising 'dual citizenship', not all such are treated equally in so far as the composition of Parliament is concerned. It depends to a large measure on how such foreign status was obtained - manner and timing. Is there a need for constitutional changes reflecting the new realities? That is another debate.

Dr. Paul Ashley is an attorney-at-law. He may be reached at ashlaw@cwjamaica.com.

[Willi]

EDITORIAL - Broad, deep debate needed on constitutional reform
Published: Monday | March 30, 2009


IF YOU start to compromise on your Constitution, as appears to be the proposition of some who ought to know better, then no law is sacrosanct, and the rights and freedoms and even legal sanctions, on which you count on in a democracy, are no longer sure.
To put it another way, constitutional certitude, including the right of the citizen to challenge, in the courts, the actions of those who rule or to seek interpretations or declarations on the supreme law is a critical underpinning of democratic governance. This is why we have no complaints about or have any wish to short-circuit the efforts of anyone who has challenged the eligibility of some members of the House of Representatives to sit in the Jamaican legislature.

As was demonstrated in the Daryl Vaz/Abe Dabdoub case, the Jamaican courts are quite competent at interpreting the meaning and intent of the constitutional provisions and the electorate, with respect and regard for the law, and are capable of determining what is in its best interest. It is, therefore, paternalistic to suggest that people need to be saved from themselves - the argument taken to its logical conclusion - and that we ought to let well alone with regard to those members of the legislature who may be occupying seats in either of its chambers unconstitutionally.

Certain absurdity

All this, of course, is not to suggest that the need for a review of the constitutional provisions on who is entitled to be a member of the House of Representatives or to sit in the Senate is not immediate and urgent. The Vaz case proved that it is. For, as Justice Panton, the president of the Court of Appeal, observed, there is a certain absurdity in the fact that a citizen of a Commonwealth country who has been resident in Jamaica for a year can be a member of the parliament, while a Jamaican who "by virtue of his own act (is) under any acknowledgement of allegiance, obedience to a foreign power or state" is debarred.

Roll call for citizenship

This is why we endorse the motion tabled in the House by the Opposition People's National Party's (PNP) Ronald Thwaites, which would require members to declare their citizenship status and for Parliament to debate the circumstances, including the matter of dual citizenship, of membership. Mr Thwaites' resolution may affect some members of his own party. But that ought not to matter to the PNP's leadership if, as they professed during the prosecution of the Vaz case, their interest was to uphold the integrity of the Constitution. Perhaps House Speaker Delroy Chuck, independent of Mr Thwaites' resolution, should proceed with a roll call on the citizenship status of members of the House.

But it is the second leg of Mr Thwaites' resolution which, going forward, is more profound, demanding a fundamental and honest reflection of how Jamaicans at home and abroad see their relationship with each other and their respective roles in governance at home. This requires a broad and deep debate - beyond bipartisan consensus - on constitutional reform.

Indeed, Section 40 (2) of the Constitution may be subject to amendment by a simple majority in the legislature, but Section 39, which lays the foundation for parliamentary representation, including the right of membership by Commonwealth citizens, is deeply entrenched. In any event, this is fundamentally the people's business.

The opinions on this page, except for the above, do not necessarily reflect the views of The Gleaner. To respond to a Gleaner editorial, email us: editor@gleanerjm.com or fax: 922-6223. Responses should be no longer than 400 words. Not all responses will be published.

[Willi]

AJ seems to agree and so kinda contradicts himself. Section 39 does NOT deal with the issue of dual citizens, except in that it is subject to the non-entrenched stipulations of section 40.

A big point is that if Jamaica pulls out of the Commonwealth then we would need a referendum to change section 39, so that our MPs could qualify? Section 39 seems be be a necessary condition but not sufficient to prevent DQ from sitting.

'Referendum necessary to change dual-citizenship laws'
Published: Thursday | April 9, 2009


A.J. NICHOLSON, opposition spokesman on justice, says any attempt to amend Section 39 of the Constitution which, among other things, deals with the issue of dual citizenship, would require a national referendum because that section is deeply entrenched.
His remarks come against the background of a recent comment by the prime minister on eligibility criteria for membership to parliament.

Bruce Golding had said he was seeking consensus with the opposition People's National Party to amend a constitutional provision dealing with the qualification for membership in parliament.

'This was absurd'

The prime minister had expressed concern about a provision which would disqualify a Jamaican with dual citizenship but would allow any Commonwealth citizen to run for office, if that person lived in Jamaica for a year before Nomination Day. According to Golding, this was absurd.

But Senator Nicholson argued that this "absurdity" was not a matter that the Golding administration or the entire parliament, properly constituted or not, could change by themselves.

"This means that any amendment of the provisions contained in that section requires a vote by the electorate by means of a referendum," said Nicholson yesterday in a release.

The former attorney general said that while the Constitution outlined the grounds for disqualification of members from the House and Senate the first requirement for qualification was Commonwealth citizenship.

"The framers of the Constitution were satisfied that, though parliamentarians may decide who will be disqualified from sitting with them, only their employers, the people, will decide who may sit there in the first place," he added.

Senator Nicholson said any agreement between the governing party and the Opposition on the matter could only represent the start of the process to amend the Constitution.

At present, three Jamaica Labour Party members of parliament (MPs) are facing court challenges for allegedly pledging allegiance to a foreign power.

If they are found in breach of the constitutional provision dealing with sworn allegiance to a foreign power, the MPs could be booted from parliament by the court.

However, like their colleague Daryl Vaz who was ousted by the court, they might have to return to the polls in a by-election to try and reclaim a place in the legislature.

[Gamma]

how bizarre...

To put the argument here being advanced into sharp relief: If an adult Jamaican citizen by virtue of his own act acquires the nationality of any other State - be it Commonwealth or otherwise - he is disqualified. However, an adult Commonwealth citizen living in Jamaica for a year satisfies the condition of Section 39, whether or not he acquires Jamaican citizenship.

[Willi]

That is just it, Pandora box open. Those sections need revision.

Commonwealth is but a club now.

A Mozambican (resident in Jam for 12 months) can sit in parliamant, but a Jam. dual National cant?