Dual citizenship dilemma
Interpreting Section 48 (1)

An excerpt from Justice Sat Sharma who offers a dissenting view from that of the CJ.

THE FIRST QUESTION:

Is a person who is a citizen of Trinidad and Tobago disqualified from election to the House of Representatives under section 48 (1) (a) of the Constitution if he is a citizen also of a country other than Trinidad and Tobago having become such a citizen voluntarily, or is under a declaration of allegiance to such a country?

In seeking to provide an answer to the first question, (above), Dr Ramsahoye SC, Mr Fyard Hosein and Mr Guthrie, QC essentially made similar submissions. It was clear that both in the 1962 Constitution and the Republican Constitution, that a citizen of Trinidad and Tobago of 18 years and had resided in Trinidad and Tobago for a period of two years immediately before the date of his nomination for election or was domiciled and resident in Trinidad and Tobago at that date, was eligible to stand for election.

This was, however, subject to section 48 which need to be repeated here, provides:

(i) 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 a citizen voluntarily, or is under a declaration of allegiance to such a country;

(b) etc

Section 49 (2):

A member of the House of Representatives shall also vacate his seat in the house where:

(c) he ceases to be a citizen of Trinidad and Tobago;

(d) subject to the provisions of sub section (3), any circumstances arise that, if he were not a member of the House of Representatives, would cause him to be disqualified for election thereto by virtue of sub section (1) of section 48 or any law enacted in pursuance of sub section (2) of that section.

Mr Mendes for the second respondents, submitted that there was nothing inconsistent with section 48 (1) of the Republican Constitution and the amendment contained in Act 21 of 1988, which amended the law to enable a citizen of Trinidad to acquire another.

He said there is nothing wrong if a state were to decide to permit dual citizenship but at the same time maintain that when the question of membership to Parliament arises, there could be no compromise of section 48 (1) of the Constitution.

I agree with Mr Mendes that there is nothing inconsistent with the two provisions, but respectfully, that is not the point. I understand the true question to be is whether in the light of the amendment in 1988 whether section 48 (1) of the Republic Constitution should still be construed in such a way, as to continue the disqualification to sit in Parliament.

Historically speaking "aliens" have been excluded from legislative bodies e.g. from membership of the English House of Commons at Common Law and by Statute (the Act of Settlement 1700). The reason for this is described by Simeon in 1795 (OP cit) at P.26.

"Aliens also, as being ignorant of the laws and customs of the realm and unable or unlikely to promote the interest of a state to which they are not naturally allied, were always ineligible".

In 1962, when Trinidad and Tobago gained independence there was no doubt that nationalistic feelings were high, and feelings of patriotism fervent.

In the 1962 Independence Constitution, Sec 31 (1) a, which was repeated in section 41 (1) (a) of the Republic Constitution did not permit dual citizenship. In other words it was not possible to acquire citizenship of another country or declare allegiance to such a country and remain a citizen of Trinidad and Tobago. This was the effect of section 11 of the Citizenship of the Republic of Trinidad and Tobago Act in its then form, which provided that "a Citizen of Trinidad and Tobago shall cease to be such a citizen if he acquires the citizenship of another country by voluntary act other than marriage and this was reflected in section 48 of the Republic Construction". In 1976 a person was either a citizen or alien.

As I have already indicated, the Act has been amended several times and in 1988 dual citizenship was permitted.

The Republican Constitution refers to a person who "is a citizen of a country other than Trinidad and Tobago, having become such a citizen voluntarily or is under a declaration of allegiance to such a country". Counsel for the appellants and the first respondent submitted that this section clearly created two categories, the first was obvious, and the second dealt with persons who had made declarations consequent on service in a foreign army, in a foreign government, etc. I accept this submission.

It is not really accurate to say as a matter of strict law that section 48 (1) (a) of the Republican Constitution deprived a person of dual citizenship to sit in Parliament.

What it did was to disqualify a person who had voluntarily become a citizen of another country, in which case, he ceased to be a citizen. If, for example, a citizen had become a citizen automatically upon marriage, or by descent, he would still be able, in my view, to stand for elections. He was not disqualified. Accordingly, even in 1962 and 1976, dual citizenship did not automatically disqualify.

Further, if section 48 (1) a of the Republican Constitution were to be given a literal interpretation it would lead to an anomalous result, for example, if a person who is a citizen by birth of another country, and becomes a citizen of Trinidad and Tobago under the Citizenship of the Republic of Trinidad and Tobago Act as now amended and is a dual citizen on that basis would be qualified to be elected to the House of Representatives. This is because although the person would be a citizen of a country other than Trinidad and Tobago that person would not have become so voluntarily.

Sharma agrees Gypsy-Chaitan motions misconceived

JUSTICE OF Appeal Sat Sharma agreed that the constitutional motions filed by Junior Ministers William “Bill” Chaitan and Winston “Gypsy” Peters were misconceived.

In a minority judgment delivered on Tuesday, Justice Sharma disagreed with Chief Justice Michael de la Bastide and Justice of Appeal Rolston Nelson that the constitutional motions should be dismissed and that the two UNC ministers should pay the legal costs incurred by the defeated PNM candidates.

The three judges, however, agreed that the High Court had the jurisdiction to rule as to whether a person was qualified for membership in the House of Representatives.

On all other issues relating to the hearing of the election petitions the court was divided—two to one.

The constitutional motions were filed by Chaitan and Peters on December 22, 2000, challenging the decision of defeated PNM candidates Farad Khan and Franklin Khan, to file election petitions seeking to unseat them from Parliament.

The petitions complained that Chaitan and Peters falsely declared that they held no allegiance to any foreign country on their nomination forms and that prohibited them from being elected to sit in the House of Representatives.

On nomination day, Chaitan held dual citizenship to Canada and Peters held dual citizenship to the United States of America.

Justice Sharma, in a minority judgment, ruled against the decision of Justice Ivor Archie to dismiss the motions on March 9. He ruled the defeated PNM candidates pay that costs of attorneys for Chaitan and Peters as well as those incurred by the Attorney General.

In his judgment, Justice Sharma said the issues raised before them were of “great constitutional, political and public importance”.

He stated that the motions were “misconceived since all the matters raised in the constitutional motions can be raised in the election petition filed” by Chaitan and Peters.

He said the court decided to give its opinion on the issues relating to the hearing of the election petitions “in the event we are wrong in concluding that the motions are misconceived”.

The points on which the Chief Justice and Justice Nelson disagreed with Justice Sharma were:

• Whether or not leave to file elections petitions was properly granted on an ex-parte application of the PNM candidates. (The Chief Justice and Justice Nelson agreed that the petitions were granted proper permission to be before the High Court while Justice Sharma disagreed.)

• Whether the failure of the Rules Committee to provide rules governing the hearing of election petitions debars the High Court from hearing such proceedings. (The Chief Justice and Justice Nelson agreed that the election petitions can be heard by the High Court but Justice Sharma disagreed.)

• Whether the question of a second citizenship or being under a declaration of allegiance of another country disqualifies a Member of Parliament from sitting in the House of Representatives. (The Chief Justice and Justice Nelson agreed that a person was disqualified if they held dual citizenship but Justice Sharma disagreed.)

• Whether a person who is not qualified on nomination day is not qualified on election day. (The Chief Justice and Justice Nelson agreed that it follows that a person not qualified on nomination was not qualified on election day but Justice Sharma disagreed.)

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