Introduction to third party letter
I have been asked by Mr. Rafiq Khan the writer of this letter who is also an attorney-at-law whether I would accommodate the corrected version of his letter. I have agreed to do so in the interest of wider information to the public on a matter which I have previously addressed both privately to GECOM and in the press.
The upcoming general and regional elections are perhaps the most important elections since those of 1992 and every citizen has a right and a duty to vote for the list of his or her choice.
Yet I regret that I will not be exercising that right or duty come May 11, 2015. My reason has nothing to do with the ability or inability of any of the contestants to properly govern the country.
My reason is based purely on a matter of principle as I perceive it. I refuse to be an accomplice to or complicit in the perpetuation of what I regard as a constitutional illegality on this country. Some of your letter writers have already alluded to it, but it does not seem to have gained the traction that it deserves. The reason, I believe, is that all political players, to use the words of Martin Carter, “are consumed” by it.
The best starting point is Article 53 of our Constitution which states that it is subject to Article 155 which relates to allegiances, etc.
By virtue of Article 53, a citizen of Guyana who is 18 years or older and can speak write English competently is qualified for election as a member of the National Assembly.
Now, Article 155 (1)(a) of our Constitution by which Article 53 is qualified says in very simple and uncomplicated language that:
“No person shall be qualified for election as a member of the National Assembly who-
(a) is by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state…”
The list of candidates recently submitted to the Chief Elections Officer by the contestants, supported by statutory declarations by each member of the lists stating that they are aware of the provisions of Article 155 of the constitution, are replete with persons who hold citizenship in other countries.
Some of these persons are my friends, at least until after this letter has been published. Put simply, membership in our National Assembly is constitutionally open only to citizens of Guyana who are not also citizens of other countries.
It is not that we are without regional judicial learning on this very constitutional prohibition. The Court of Appeal of Jamaica, in its sound and reasoned judgement in the case of Dabdoub –v- Vaz et al 75 WIR 356, provides the clearest interpretation of an identical provision in the Constitution of Jamaica which states:
“No person shall be qualified to be appointed a senator or elected as 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.”
Abraham Dabdoub challenged the right of Daryl Vaz to sit in the House of Representatives on the ground (among other things) that Vaz was a citizen of the USA.
Darryl Vaz was born in Jamaica to a father who was a Jamaican citizen and a mother who was a US citizen. His mother registered his birth at the US Embassy in Jamaica and by virtue of the US Immigration and Nationality Act, he became a citizen of the USA.
Vaz received and subsequently renewed his US passport which he used to travel from Jamaica to the USA and back.
The Court of Appeal of Jamaica unanimously held that upon a proper construction of Section 40(2)(a) of the Constitution [our Article 155 (1)(a)] Jamaicans who by their own act sought and obtained citizenship in a foreign power or state, or not having so sought it, nevertheless voluntarily acknowledged allegiance to such countries were not qualified to sit in the House of Representatives.
In the course of his judgement, the President of the Court, Panton P, at paragraph 35 made the following salient observation:
“The framers of the Constitution clearly intended that Jamaicans who by their own act sought and received non-commonwealth citizenship or having not so sought it, nevertheless voluntarily acknowledged allegiances to such countries, should not sit in House of Representatives. It does not matter that they were born in Jamaica. It is a notorious fact that over the years many Jamaicans have acquired foreign citizenship and many others are constantly in the process of seeking such status.” (sounds familiar)
The Court found that the use of and renewal by Mr. Vaz of his US passport amounted to an acknowledged allegiance to a foreign state of which he was a citizen. The court held, affirming the judgement of the Chief Justice, that Mr. Vaz was disqualified.
It should be noted that, unlike the Guyana Constitution, there is a provision in the Jamaican Constitution which allows a Commonwealth citizen to be a member of Jamaica’s House of Representatives. This is undoubtedly because Jamaica, unlike Guyana, has not achieved Republican status and the Queen is still its head of state.
As a consequence of this decision, Daryl Vaz in an act of patriotism and commitment to Jamaica, relinquished his US citizenship, recontested the seat for the constituency of West Portland Jamaica and was duly elected to the House of Representatives.
Closer to home, the Court of Appeal of Trinidad and Tobago in Winston Peters –v- Attorney General and another and William Chaitan –v- Attorney General and another 63 WIR 243 had, among other things, to construe a similar provision to our Article 155(1)(a), namely Article 48(1)(a) of the Constitution of Trinidad and Tobago which states:
“No person shall be qualified to be elected as a member of the House of Representatives who-
(a) is a citizen of a country other than Trinidad and Tobago having become such citizen voluntarily or is under a declaration of allegiance to such country.”
De La Bastide CJ, as he then was, made the following relevant observation at pp 283-284:
“Two things are quite clear. One is that, on the face of it, the effect of Section 48(1)(a) is to disqualify for election to the House of Representatives any citizen of Trinidad and Tobago who holds the citizenship of another country having acquired that citizenship by voluntary act. The second is that if one were to treat Section 48(1)(a) (or the part of it that relates to the acquisition of a second citizenship) as applicable to persons who are not citizens of Trinidad and Tobago, that would render the provision meaningless. The effect would be the same as repealing it. That I do not think we are entitled to do…… Its meaning is too clear to be interpreted out of existence…… it is clearly not the policy of the Constitution to confer the right to be elected to the House of Representatives on every citizen of Trinidad and Tobago. It is conceivable that there may be good reasons for withholding that right from those citizens who have voluntarily acquired citizenship of another country…. It could be argued that the holding of dual citizenship in such circumstances may create split loyalties and potential conflicts of interest which are better avoided in the case of a member of Parliament even though acceptable in the case of an ordinary citizen. The argument would presumably be stronger with reference to a Minister…”
With respect to the issue of dual citizenship the framers of the Guyana Constitution by making Article 53 subject to Article 155, put the issue beyond all doubt.
Persons holding dual citizenship are disqualified from being members of the National Assembly.
In any event, the Appellants in the Trinidad and Tobago case, relinquished their Canadian and US citizenships and the issue turned on whether that should have been done before nomination day or election day.
I do not know if there is anyone out there who is prepared to bet me that any of our prospective parliamentarians holding foreign citizenships are going to be prepared, like their Jamaican and Trinidadian counterparts, to relinquish their foreign citizenship for Guyana.
Then there is the issue of the statutory declarations made by the members of the lists in which they each declare that they are aware of Article 155 of the Constitution.
Under Section 4 of the Statutory Declarations Act Cap. 5:09, it is an offence punishable by imprisonment for a period of one year to make in a statutory declaration a statement false in fact.
For too long many of our laws have been honoured in the breach. It is particularly egregious when persons who, smugly holding aloft in their article of faith, are going to swear to uphold the Constitution and the laws of Guyana, are themselves in blatant breach of the Constitution. That is hypocrisy.
This is why I will not be voting come May 11, 2015.
Rafiq T. Khan