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APPELLANT’S SKELETON SUBMISSIONS CIVIL APPEAL NO. 45 OF 2008
IN THE COURT OF APPEAL
CLAIM NO. 2007 HCV 03921
COURT OF APPEAL NO. 45 OF 2008.
BETWEEN ABRAHAM DABDOUB PETITIONER/APPELLANT
A N D DARYL VAZ 1ST RESPONDENT
A N D CARLTON HARRIS 2ND RESPONDENT
AND THE ATTORNEY GENERAL
OF JAMAICA 3RD RESPONDENT
AND
IN THE COURT OF APPEAL
SUPREME COURT CLAIM NO. 2007 HCV 03921
CIVIL APPEAL NO. 47 OF 2008.
BETWEEN RESPONDENT VAZ APPELLANT
A N D ABRAHAM DABDOUB RESPONDENT
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Preface
1. This case has more at stake than a contest between two men.
Only superficially does this case concern who should be the
Member of Parliament for West Portland. Should it be Respondent
Vaz, who recorded 900 more votes than Appellant Dabdoub, but
whose nomination Chief Justice McCalla says is null and void as at
the time of nomination Vaz was constitutionally not qualified to be
elected, he being under an acknowledgment of allegiance to a
foreign state?1 Or should it be Appellant Dabdoub, who had the
majority of legal votes, and who says the electors threw away and
wasted their votes for Respondent Vaz when they knew the fact of
Respondent Vaz’s being not qualified to be elected?
2. Respondent Vaz’s counsel says that “If the Court did not allow the
citizens’ votes to be counted it would fly in the face of the implicit
right of each citizen of Jamaica to participate in the democratic
process”.2 Assuming section 40(2)(a) disqualifies Respondent Vaz,
then counsel for Respondent Vaz would want the Court to let Vaz
rid himself of the disqualification and to hold a by-election than to
decide to seat Appellant Dabdoub.
3. But if the Court looks more closely at the law in this area, its long
history, and the reasons for the law, then the Court will see that
Appellant Dabdoub is the candidate who received the majority of
countable, legal votes and must, according to the relevant
authorities, be returned as Member for West Portland. This would
be in keeping with the tenets of democracy.
1 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 35. 2 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 41.
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4. The Court will see that the electors who voted for the Respondent
Vaz did, in fact, participate in the democratic process. This
democratic process is a democratic process established by law.
The law sets out the legal qualifications, disqualifications, and
other rules, that regulate candidates and elections, including rules
about the treatment of rejected ballots and spoilt ballots. This body
of law includes the well-established principle of law of “Votes
Thrown Away” or “Votes Wasted”.
5. Respondent Vaz’s counsel is wrong in law in saying that the Court
is not allowing the citizens’ votes to be counted—the votes cast for
Respondent Vaz are inherently uncountable in the same way that a
rejected ballot or spoilt ballot is uncountable, since Vaz’s candidacy
was null and void. The votes for Respondent Vaz “are to be
considered the same as if the persons had not voted at all”.3 The
candidate, Respondent Vaz, is “to be considered as one not in esse
[in existence]”.4 Voting for an unqualified candidate such as
Respondent Vaz is like “voting for a dead man”5 or for the “man in
the moon”.6
6. To change the metaphor, letting Respondent Vaz take the seat of
West Portland would be like awarding a gold medal to a sprinter
who false-starts or to an athlete who cheats by taking drugs. While
counsel for Appellant Dabdoub does not suggest Respondent Vaz
has intentionally cheated, the rules against unqualified candidates
3 R v Hawkins (1808) 103 ER 755 at 756; Taylor v Mayor of Bath (1741) Mich 15 Geo 2 noted in Radnor Case (1803) 1 Peckwell’s Election Cases 496, 497. 4 Leominster Case (1819) Corbett and Daniell’s Election Cases 1, 13. 5 Taylor v Mayor of Bath (1741) Mich 15 Geo 2 cited in R v Monday (1777) 2 Cowper’s Reports 1224, 1228.
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must be applied as strictly as the rules against drug cheating, or
else future disqualified candidates will be tempted to run; and, if
they get away with it undetected or unpetitioned in time, then
their presence will sully the composition of Parliament. Also, if
despite proper notice to the voters the Court orders a bye-election,
then it encourages unqualified candidates and their political parties
to repeat these performances, secure in the knowledge that the
Court will provide another opportunity.
7. True or real democracy cannot exist outside the rule of law.
Elections are held pursuant to laws; for democracy to prevail,
elections must be conducted in accordance with those laws, rules,
and regulations as provided by statute and by the common law.
8. This is why for hundreds of years judges have carefully and
deliberately mapped a clear and a simple path for the Court to
follow. That path will lead to a stronger Jamaican democracy, not a
weaker democracy. By contrast, the path urged by counsel for
Respondent Vaz will cause uncertainty, and doctrinal incoherence
and inconsistency, and, in reality, will lead to a weaker Jamaican
democracy and a weaker rule of law.
9. The franchise to vote is conferred by the Constitution of Jamaica.
It is a franchise that must be exercised in strict accordance with
the law governing elections. It is adherence to the rule of law that
guarantees democracy and the right to elect the representatives is
a franchise granted by law.
6 See cases cited in Drinkwater v Deakin (1874) 9 LRCP 626, 629.
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10. On a deeper level, this case involves more than just a
parliamentary seat. This case puts to task governments, political
parties, and candidates whose political interests conflict with the
Jamaican people’s interests in protecting the Constitution and the
rule of law.
11. The courts must safeguard for Jamaicans their constitutional right
to be represented only by people who owe, and who appear to
owe, their undivided loyalty to Jamaica.
12. The courts must fortify the democratic process against the
possibility of future violation and mischievousness, by insisting that
there be strict compliance with the Constitution and the laws,
enacted pursuant to the Constitution, which give effect to the
conduct and questioning of elections. Only candidates qualified to
be elected must offer themselves for election and political parties
must put forward only candidates who are qualified to be elected.
Electors are to be urged to seriously participate in the democratic
process by making sure their votes count.
13. The way to achieve a stronger democracy for Jamaica is for the
Court to seat the only constitutionally qualified candidate,
Appellant Dabdoub, so that future elections will be conducted
properly and according to law.
14. Against the background of proper notice having been given the
voters, having a re-election now, more than a year after the
general election, is not particularly democratic. Voting at a
considerably different time, and in a limited rather than general
election, is artificial.
6
15. The people of West Portland deserve to have a representative as
soon as possible. Once the Court rules that Appellant Dabdoub is
the only legally supported qualified candidate and that voters were
on notice, then it supports representative democracy to seat him
as soon as possible, rather than to wait even longer for a bye-
election (let alone having a constitutionally unqualified Member
continue in place in the interim). The only democratic and judicious
decision must be to apply the law and award the seat to the
person who has the majority of legal votes, namely Appellant
Dabdoub.
16. If there are some politicians who dislike this outcome, or believe
that the policy behind Section 40(2)(a) is no longer in the interests
of the Jamaican people, then it is for them to lobby the support of
Parliament or the people voting at referendum to change the law;
it is not for the Court.7
17. If some politicians disagree with the precedents that clearly
establish that those who voted with knowledge or notice of the
facts giving rise to Vaz’s disqualification have thrown away their
votes and that their votes are wasted, then they may lobby
Parliament to undo the rule by simple legislation. But it is for the
Court to follow and to give effect to the law as the law presently
stands.
7 Chaitan v A-G (Court of Appeal, Republic of Trinidad and Tobago, 31 July 2001) 62 (de la Bastide CJ) 33.
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18. To give effect to the law, the Court has to follow long-standing and
unbroken precedents dating from as early as the 1700s8 to now.
Counsel for Appellant Dabdoub submits that the “Votes Thrown
Away” rule, recognised as being part of Jamaican law,9 is well-
established in its meaning and application. Counsel submits that
the words of section 40(2)(a) are also clear; and it is the duty of
the Court to give effect to those clear words.10
19. Unlike Appellant Dabdoub’s Counsel’s approach, which does not
require the Court to overturn a single precedent or to create
artificial distinctions or to make new law, Respondent Vaz’s
Counsel’s approach requires the Court to take a totally false
interpretation of the Constitution, by confusing the constitutional
rights of dual citizens with the constitutional qualifications required
of Members of Parliament.
20. Respondent Vaz’s approach requires the Court to overturn long-
standing precedents that establish the content and application of
“Votes Thrown Away” or to adopt unreal and impractical
approaches such as ignoring the clear words of the Fixed Date
Claim Form filed on 30 August 2007 and Appellant Dabdoub’s
Affidavit in support that Respondent Vaz “travelled extensively on
the said passport utilizing same to leave and enter Jamaica”, or to
nit-pick to avoid the conclusion that the electorate received proper
notice of facts that were “clear, definite, and certain” about
8 One of the earliest cases is R v Boscawen (1714) Easter 13 Anne cited in R v Monday (1777) 2 Cowper’s Reports 1224, 1228, discussed below. 9 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 36. 10 Chaitan v A-G (Court of Appeal, Republic of Trinidad and Tobago, 31 July 2001) 62 (de la Bastide CJ) 33.
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Respondent Vaz’s lack of qualification, including the Notice of
Disqualification and Legal Opinion issued by Appellant Dabdoub
and distributed to almost every voter in every polling division in
West Portland.
21. Counsel on behalf of the Appellant urges the Court to:
(a) follow the precedent, which Chief Justice McCalla in the court
below followed,11 that accepting, using, and renewing a
foreign passport means being “under any acknowledgment of
allegiance to a foreign power” under section 40(2)(a) of the
Constitution;
(b) accept, as Chief Justice McCalla accepted, that the “Votes
Thrown Away” rule is part of Jamaican law;12 and
(c) correct the errors Chief Justice McCalla made when she
misapplied the Votes Thrown Away rule.13 Specifically, the
Court should find:
(i) Appellant Dabdoub did give the electorate proper and
sufficient notice of the “positive acts” causing
Respondent Vaz’s disqualification, by Appellant
Dabdoub swearing in his Affidavit (incorporated into the
Fixed Date Claim Form filed on 30 August 2007 which
Fixed Date Claim Form the Chief Justice accepted was
particularized and received widespread publication in
the media) that Respondent Vaz had “travelled
11 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 34–5. 12 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 36. 13 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 41–50.
9
extensively” on the United States passport to leave and
enter Jamaica; and
(ii) even without the direct Notice, the average voter would
know, it being a notorious fact that passports do not
last forever or for more than 10 years. The average
voter would know, it being notorious fact that a middle-
aged man such as Vaz, who is the holder of a passport,
must have applied for that passport or applied to renew
it; and
(iii) There was sufficient information publicized in the media
concerning the first respondent’s lack of qualification so
as to make it notorious and therefore notice in law.
22. The Court is also urged to take this opportunity to give effect to
and to set out clearly the relevant constitutional provisions in order
to protect the Parliament from unqualified candidates. Specifically,
the Court should find that where there is a way to renounce,
extinguish, or relinquish foreign citizenship then a foreign citizen is
“by virtue of his own act, under any acknowledgment of allegiance
to a foreign power”, if, on reaching the age of majority or
thereafter, he fails to avail himself of the opportunity to renounce,
extinguish, or relinquish the foreign citizenship.
23. On this basis, the law regards Respondent Vaz as having been
“under” an acknowledgment “by virtue of his own act”. Vaz
recognized and accepted his foreign citizen status by choosing to
not renounce, extinguish, or relinquish his foreign citizenship after
becoming an adult; and long before he offered himself for election
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to the House of Representatives, Respondent Vaz utilised his
citizenship status to obtain and travel on a United States passport.
At the time of his nomination, therefore, Respondent Vaz’s legal
status was that he was a citizen of the United States of America
and by virtue of Section 40(2)(a) not qualified to be appointed to
the Senate or elected to the House of Representatives.
24. It is fine for ordinary Jamaicans to be dual citizens and to be under
an acknowledgment of allegiance to, and protection from, a
foreign country; but the Jamaican Constitution insists that
Parliamentarians with this status be excluded from the Houses of
Parliament.
25. The immediate result will be to award the seat to Appellant
Dabdoub, and to award him costs (including the costs against
Respondent Vaz that the Chief Justice should have awarded at first
instance). The lasting result will be a stronger Jamaican democracy
ruled by law and not ruled by men who disregard the law for their
own purposes.
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CONTENTS
Preface......................................................................................................2
LACK OF QUALIFICATION.........................................................................15
I. Introduction—Appellant Dabdoub Makes 3 Key Submissions About Section 40(2)(a) ..................................................................................................15
A. Respondent Vaz is disqualified because at the time of nomination, he was a United States citizen, a status that Vaz chose to not renounce .......16
B. Respondent Vaz is disqualified because at the time of nomination, Vaz was the holder of a United States passport, a document that acknowledges Vaz’s duty of allegiance to and protection from the United States ............16
C. Respondent Vaz is disqualified because, prior to nomination, he applied for, renewed, and travelled on his United States for various overseas trips, “positive acts” that Chief Justice McCalla agrees disqualifies Respondent Vaz ......................................................................................................16
II. Summary of the Decision at First Instance ............................................22
III. Analysis of Section 40(2)(a) ................................................................23
A. Element 1: For each of the 3 key facts, Vaz was under an acknowledgment of allegiance to a “foreign power or state”....................24
B. Element 2: For each of the 3 key facts, Vaz was under an acknowledgment of “allegiance” ............................................................24
C. Element 3: For each of the 3 key facts, Vaz was “under any acknowledgment” of allegiance..............................................................26
1. “Any acknowledgment” is not limited to an acknowledgment by the candidate..........................................................................................26
2. “Any acknowledgment” can include any acknowledgment by the state........................................................................................................29
3. Thus, Vaz was under “any acknowledgment” of allegiance not only because of his positive acts but also his United States citizenship and passport ...........................................................................................32
12
D. Element 4: For each of the 3 key facts, Vaz was under any acknowledgment of allegiance “by virtue of his own act”.........................36
1. “By virtue of his own act” can be established by more than just positive acts......................................................................................37
2. “By virtue of his own act” includes a failure to renounce foreign citizenship.........................................................................................39
3. Thus, Vaz was under an acknowledgment of allegiance “by virtue of his own act” not only because of his positive acts but also his United States citizenship and passport...........................................................45
VOTES THROWN AWAY............................................................................48
IV. Introduction—Appellant Dabdoub Makes 3 Key Submissions about the Notice to the Electors ...............................................................................48
A. The Electors Had Definite Notice of Vaz’s United States Citizenship......51
B. The Electors Had Definite Notice of Vaz’s Holding A United States Passport...............................................................................................51
C. The Electors Had Definite Notice of Vaz’s Applying for, Renewing, and Travelling on His United States Passport ................................................51
V. Summary of Law..................................................................................52
VI. Chronology of Cases ...........................................................................55
VII. Analysis and Application of the “Votes Thrown Away” Rule...................69
A. Element 1: The Facts Must Be Incapacitating Facts.............................70
B. Element 2: The Electors Must “Know” the Incapacitating Facts ............71
C. Element 3: The Incapacitating Facts Are Reasonably Established as True to the Electorate to the Extent that a Voter of Ordinary Care and Intelligence Is Put on Inquiry ................................................................72
1. The law as to “clear definite and certain” ........................................76
(a) Facts are reasonably established as clear, definite, and certain to the electorate if the facts are obvious or notorious...........................76
13
(b) Facts are reasonably established as clear, definite, and certain to the electorate if the facts are unchallenged or uncontradicted...........77
(c) Facts are reasonably established as clear, definite, and certain to the electorate if the facts are proved...............................................78
(d) Facts are reasonably established to the electorate as clear, definite, and certain if they are admitted .........................................78
2. The Approach the Chief Justice Ought to Have Taken......................78
(a) The electors had definite notice Vaz’s United States citizenship since Vaz’s United States citizenship was notorious and uncontradicted.....................................................................................................79
(b) The electors had definite notice of Vaz’s holding a United States passport since Vaz’s holding a United States passport was notorious and uncontradicted ........................................................................80
(c) The electors had definite notice of Vaz’s renewing and travelling on his United States passport since Vaz’s renewing and travelling on his United States passport was notorious and uncontradicted ................80
3. The Causes of Chief Justice McCalla’s Mistakes................................83
(a) Chief Justice McCalla misinterprets “acknowledgment” ................84
(b) Chief Justice McCalla erred when she failed to understand the distinction between facts giving rise to “status” and “conduct” facts..85
(c) The dispute over Mr Vaz’s disqualification is no bar to votes being thrown away..................................................................................90
(i) The press releases did not dispute the underlying facts ............90
(ii) The Director of Elections’ press releases were legally confused and beyond his power or authority...............................................93
D. Element 4: The Affected Candidate Must Have Won the Majority of Votes ...................................................................................................93
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COSTS.....................................................................................................94
VIII. The Election Petitions Act..................................................................94
IX. Chronology of Facts ............................................................................95
X. Exercise of Discretion ...........................................................................99
XI. Conclusion: Appellant Dabdoub Has Shown the Voters Knew (or Can be Taken to Have Known) the Acts, Positive or Negative, Creating Vaz’s Disqualification ......................................................................................104
15
LACK OF QUALIFICATION
I. Introduction—Appellant Dabdoub Makes 3 Key Submissions About Section 40(2)(a)
26. This submission deals with the first issue of this appeal—Does
Section 40(2)(a) of the Jamaican Constitution disqualify
Respondent Vaz from standing for, and sitting in, Parliament?
27. In the court below, Chief Justice McCalla ruled that Section
40(2)(a) did disqualify Vaz to be nominated and elected as a
Member of the House of Representatives because:
“the first respondent [Respondent Vaz] has by virtue of his own
act acknowledged his allegiance … to the United States of
America and … was not qualified to be elected as a Member of
the House of Representatives”.14
28. For Chief Justice McCalla, the facts that disqualified Respondent
Vaz was Vaz’s renewing and travelling on his United States
passport as an adult:
“I base my finding of acknowledgment of allegiance, obedience
or adherence on positive acts by the first respondent of
applying for renewal and travelling on his American passport as
an adult.” 15
29. Counsel for Appellant Dabdoub agrees with Chief Justice McCalla
that Vaz’s positive acts of applying for and renewing a United
14 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 34–5. 15 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 44.
16
States passport disqualifies Vaz; but counsel for Appellant
Dabdoub submits 2 extra reasons also disqualify Vaz.
30. The 3 facts that create Vaz’s disqualification, and Appellant
Dabdoub’s 3 key propositions in this submission, are:
A. Respondent Vaz is disqualified because at the time of nomination, he was a United States citizen, a status that Vaz chose to not renounce
B. Respondent Vaz is disqualified because at the time of nomination, Vaz was the holder of a United States passport, a document that acknowledges Vaz’s duty of allegiance to and protection from the United States
C. Respondent Vaz is disqualified because, prior to nomination, he applied for, renewed, and travelled on his United States for various overseas trips, “positive acts” that Chief Justice McCalla agrees disqualifies Respondent Vaz
31. The Court needs to decide which of the above facts creates
Respondent Vaz’s disqualification, because the answer may affect
the second main question of this appeal—Were votes for
Respondent Vaz thrown away? (see submission below on votes
thrown away).
32. Counsel for Appellant Dabdoub’s overall theme in the present
submission is that the Chief Justice has misinterpreted “is under an
acknowledgment” as meaning the same as “makes an
acknowledgment”.
II. Chronology
33. Respondent Vaz’s mother, Sonia, was born in Puerto Rico16 on 24
May 1938.17 Born in Puerto Rico, Sonia was a United States
16 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 17.
17
citizen.18 In 1959, Sonia married Jamaican Douglas Vaz.19 Sonia
gave birth to son Daryl in Jamaica on 15 December 1963.20 She
registered her son’s birth at the United States Embassy in Jamaica
in accordance with United States law, which by law conferred onto
Respondent Vaz the status of being a United States citizen.21
34. When Daryl was around 4 years old, he was added to his mother’s
passport.22 On 17 June 1978, Respondent Vaz’s mother applied for
a United States passport for him.23 Daryl was around 14.
35. Later, Daryl applied and received a renewal of his passport 3
times: 31 October 1984, 21 January 1994, and 5 May 2004.24 On
each of these occasions, Respondent Vaz was over the age of
majority and responsible for his actions. He used his United States
passport in various overseas travels.25
36. Section 349(a)(5) of the Immigration and Nationality Act 1996 (US)
provides a simple mechanism for renouncing United States
citizenship. But Respondent Vaz had not made a renunciation
under this provision and at the time he was nominated for
Parliament on 7 August 2008 he was a United States citizen, who
17 Closing Submissions of First Respondent (Supreme Court) para 6; Affidavit of Respondent Vaz, para 5. 18 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 17. 19 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 17. 20 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 17; Closing Submissions of First Respondent (Supreme Court) para 6. 21 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 17. 22 Closing Submissions of First Respondent (Supreme Court) para 8. 23 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 33. 24 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 20. 25 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 23, 31.
18
by virtue of his own act was under an acknowledgment of
allegiance to that country.
37. On 7 August 2007, Respondent Vaz was nominated as the Jamaica
Labour Party’s candidate for the seat of West Portland.26 Appellant
Dabdoub was the People’s National Party’s candidate for the same
seat.27 Vaz remained a United States citizen up to and beyond the
date on which he nominated as a candidate for election to the
House of Representatives.28 At the time of his nomination, he was
not by virtue of Section 40(2)(a) of the Constitution qualified to be
elected to the House of Representatives and therefore not qualified
to be nominated.
38. Before and during the election campaign, there was substantial
publicity of Vaz’s United States citizenship and passport as well as
the foreign citizenship of other candidates.
39. On 16 August 2007, the Director of Elections issued a Press
Statement, which was circulated and publicised in the media.29 It
asserted that all candidates had been properly nominated. It did
not, however, rebut or seek to rebut the facts on which any of the
candidates’ incapacity, including Respondent Vaz’s incapacity,
rested: United States citizenship and the United States passport.
40. On 29 August 2007, Appellant Dabdoub issued a Notice of
Disqualification and Legal Opinion explaining that Respondent Vaz
was not qualified to be elected by virtue the fact that he was a
26 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 2. 27 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 2. 28 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 23, 31. 29 The text is set out in Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008), 47.
19
United States citizen and the holder of a United States passport.
The facts of Vaz’s disqualification were also publicised widely in the
media and also by house-to-house visits, by the preparation and
distribution of the Notice on a house-to-house basis, and by
posters to the electors in every polling division.30
41. On 31 August 2007, apparently in response to Appellant Dabdoub’s
Notice of Disqualification and Legal Opinion, the Director of
Elections issued another Press Release.31 This again asserted that
all 146 candidates had been properly nominated. It also alleged
that “persons are apparently seeking to mislead electors that votes
cast for certain candidates will be wasted. This is False”.32 This
Press Release did not specifically refer to Respondent Vaz’s
candidacy nor did it rebut or even seek to rebut the facts about
Respondent Vaz that were stated in the Notice of Disqualification
and Legal Opinion; and it was a notorious fact that there were
other candidates in a similar position to Respondent Vaz.
42. The general election was held on 3 September 2007.33 Vaz was
returned declared the elected Member of Parliament for West
Portland, over Appellant Dabdoub, and was sworn in as a member
of the House of Representatives.34
30 The text is set out in Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 41–44. 31 The text is set out in Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 47. 32 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 48. 33 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 2. 34 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 2.
20
43. On 1 October 2007, Appellant Dabdoub filed an Election Petition
claiming relief against Respondent Vaz (among others).35 Chief
Justice McCalla heard the petition in late 2007 and early 2008,
delivering judgment on 11 April 2008.
44. Chief Justice McCalla found in Appellant Dabdoub’s favour on the
“substantive issue”,36 namely “whether or not having regard to the
provisions of Section 40(2)(a) of the Jamaican Constitution the first
respondent [Respondent Vaz] is qualified to be elected to the
House of Representatives”.37
45. Although Chief Justice McCalla found that Section 40(2)(a)
disqualified Vaz, the Chief Justice did not provide the remedy of
awarding the seat to Appellant Dabdoub, believing that the notice
Appellant Dabdoub gave the electors of Vaz’s disqualification was
not “clear, definite and certain”.38 Despite finding in Dabdoub’s
favour on the “substantive issue”, although providing a different
remedy, the Chief Justice did not award Appellant Dabdoub costs
against Vaz thereby departing from the principle that costs follow
the event.39
35 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 2. 36 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 4. 37 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 50. 38 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 4. 39 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 53.
21
46. After Chief Justice McCalla delivered her judgment, Respondent
Vaz renounced his United States citizenship. It took effect on 2
May 2008.
III. Summary of Law
47. Section 39 of the Jamaica Constitution prescribes the primary
qualification for election as a member of the House of
Representatives or appointment to the Senate. This qualification is
specifically made “subject to” the provisions of Section 40 and
states: “no other person shall be so qualified”.
48. The framers of the Constitution used the words “no other person
shall be so qualified” for a reason. Section 39, Section 40 (2)(a),
and Section 41(1)(d) of the Constitution must be read together to
determine the framers’ intent. When read together, it becomes
clear that the framers’ intent was to ensure that only persons who
had undivided loyalty to Jamaica were elected or appointed to the
Parliament.
49. The use of the words “no other person shall be so qualified” means
that a person who also holds non-Commonwealth citizenship and is
under acknowledgment of allegiance to a foreign power or state
does not qualify, since his status is more than just a
Commonwealth citizen, and he is therefore a person with divided
loyalties.
50. Such a person, therefore, is properly described as an “other
person” within the meaning of Section 39 of the Jamaica
Constitution. What other legal, practical, or logical interpretation
can be placed on the meaning of “no other person shall be so
qualified” in the context in which they are used in Section 39,
22
which is “subject to” Section 40, and, in the present case, section
40(2)(a)? Any other meaning would be to render the use of the
phrase redundant.
51. Section 40(2) of the Jamaican Constitution prescribes the
categories or statuses of persons who are not qualified to be
appointed to the Senate or elected to the House of
Representatives. Section 40(2)(a) provides one such category or
status in the following way:
40(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 acknowledgement of
allegiance, obedience or adherence to a foreign power or
state.
52. A phrase-by-phrase analysis of this section follows a summary of
Chief Justice McCalla’s decision at first instance.
II. Summary of the Decision at First Instance
53. In her judgment of 11 April 2008, Chief Justice McCalla accepted
most of the submissions made by counsel for Appellant Dabdoub.
In particular, the Chief Justice agreed with Appellant’s contention
that:
(a) “The words ‘acknowledgment of allegiance obedience and
adherence to a foreign power’ in section 40(2)(a) of the
Jamaican Constitution are wide enough to embrace a citizen
who is a subject or citizen of a foreign power”;40 and
40 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 34–5.
23
(b) “[B]y his positive acts of renewing and travelling on his
United States passport the first respondent [Respondent Vaz]
has by virtue of his own act acknowledged his allegiance,
obedience or adherence to the United States of America and
by virtue of section 40(2)(a) he was not qualified to be
elected as a Member of the House of Representatives”.41
54. However, Chief Justice McCalla also ruled that:
(c) “If he had not renewed his passport but nevertheless
retained his American citizenship in such a case there could
have been no doubt that he had obtained American
Citizenship involuntarily and no question of disqualification
could have arisen. Had he not renewed and travelled on his
United States passport it could not have been argued that he
was under any acknowledgment of allegiance to the United
States of America by virtue of his own act”;42
55. Appellant Dabdoub now appeals to this Court, in this first
submission headed “Lack of Qualification”, on point (c). The
following submissions will show precisely how the Chief Justice
erred and will outline the approach the Chief Justice ought to have
taken and the approach this Court ought to follow.
III. Analysis of Section 40(2)(a)
56. Section 40(2)(a) imposes a disqualification on membership of
either House of the Jamaican Parliament that applies when 4
elements are satisfied:
41 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 34–5. 42 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 49.
24
(a) Element 1: Foreign Power. There is a foreign power or state.
(b) Element 2: Allegiance. There is “allegiance, obedience, or
adherence” to this foreign power or state.
(c) Element 3: Acknowledgment. The candidate “is … under any
acknowledgment” of this allegiance, obedience, or
adherence.
(d) Element 4: Voluntary Act. The candidate is under this
acknowledgment “by virtue of his own act”.
A. Element 1: For each of the 3 key facts, Vaz was under an acknowledgment of allegiance to a “foreign power or state”
57. In the present case, both sides accept that the United States is a
“foreign power or state”.43 Thus, if Respondent Vaz was under an
acknowledgment of allegiance by virtue of his own act, then it is
agreed that it was to a “foreign power or state”.44
B. Element 2: For each of the 3 key facts, Vaz was under an acknowledgment of “allegiance”
58. Section 40(2)(a) requires an acknowledgment of at least 1 of 3
possible states, namely “allegiance, obedience, or adherence”.
There is a significant degree of overlap between allegiance and
obedience. Obligations of allegiance and obedience to a country
are inherent in citizenship and in holding or using a passport.
Adherence is most manifest when one joins the armed forces of
43 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 17. 44 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 17. See also Evidence of George Crimarco, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 320, 325–327, 329.
25
the country in question or joins forces with them, although, of
course, this may also involve allegiance.
59. While allegiance is naturally associated with citizenship, since
citizenship rests on allegiance, it is possible to have allegiance
without citizenship (but not citizenship without allegiance).45
Allegiance can be based on other acts, which include making an
oath of allegiance, serving in the armed forces of the country, and
holding a foreign passport.46 In the present case, the evidence
before the Court is that United States passports can only be issued
to persons owing allegiance to the United States (that is, United
States citizens or United States Nationals).47
60. In the present case, both sides agree that:
“a citizen of a foreign power owes allegiance or obedience to
that foreign power. On the evidence adduced the first
respondent clearly owes allegiance to the United States of
America as well as obedience and adherence to that country.”48
And he was under this acknowledgment of allegiance prior to
nomination day.
61. Thus, it can be agreed that Respondent Vaz was “under an
acknowledgment of allegiance” as evidenced by his United States
citizenship, his holding a United States passport, and his applying
for, renewing, and travelling on the United States passport.
45 Evidence of George Crimarco, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 230. 46 Michael Pryles, ‘Nationality Qualifications for Members of Parliament’ (1982) 8 Monash University Law Review 163, 177. 47 Evidence of George Crimarco, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 228, 325–327.
26
C. Element 3: For each of the 3 key facts, Vaz was “under any acknowledgment” of allegiance
62. But the parties disagree on the meaning of “is … under any
acknowledgment”. Counsel for Appellant Dabdoub submits that
section 40(2)(a) disqualifies Vaz not only because of Vaz’s positive
acts of applying for, renewing, and travelling on his United States
passport, but also because of merely holding a United States
passport and through Vaz’s United States citizenship, which carries
with it obligations and duties of allegiance that Vaz, by virtue of his
own act, chose to not renounce—thereby acknowledging,
accepting, and acquiescing in the allegiance he is under by virtue
of that citizenship. The evidence of Respondent Vaz is clear that he
understood that he could renounce his citizenship but chose not
to.49 In not renouncing his citizenship, he took the positive and
conscious decision of accepting, confirming, affirming, concurring,
and acquiescing in being under an acknowledgment of allegiance
to the United States, an allegiance he owed by virtue of his
citizenship of that country whether that citizenship was acquired
voluntarily or not. The following sections explain the basis of this
key proposition.
1. “Any acknowledgment” is not limited to an acknowledgment by the candidate
63. According to the Chief Justice in the court below,
“acknowledgment” refers to an acknowledgment by the individual
who is or may be under allegiance (that is, the candidate; in the
present case, this would be Respondent Vaz). But this meaning,
48 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 17. Evidence of George Crimarco, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 230.
27
which we will label “Meaning 1”, does not fit the constitutional
context, nor universal case law, unless its meaning is interpreted
to embrace acts of omission, acceptance, affirmation,
acquiescence, admission, confirmation, concurrence and
recognition.
64. In the present case, Respondent Vaz acquired his United States
citizenship at birth by virtue of the laws of the United States. He
was in no different position to someone who acquires United
States citizenship by being born in the United States. In both
instances, such a person could be said to have acquired the
citizenship “involuntarily”. But Respondent Vaz retained this
American citizenship from then on, even though he was legally
able to renounce it. The court held that if this was all that
happened, then Respondent Vaz “had obtained American
Citizenship involuntarily and no question of disqualification could
have arisen”.50 The reason given by the Chief Justice for this
finding was that it was the “taking of steps [by Vaz himself] to
acknowledge that citizenship that causes the disqualification”.51
65. This is a clear assertion by the Chief Justice at first instance that
she considered Meaning 1 to be the only meaning. In other words,
the Chief Justice found that the phrase “is under any
acknowledgment” refers to a positive acknowledgment by the
individual who owes allegiance. For the Chief Justice at first
instance, “acknowledgment” and “is under … any
49 Evidence of Daryl Vaz, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 282–283. 50 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 33. 51 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 33.
28
acknowledgment” mean the same thing. But “acknowledgment”
and “is under … an acknowledgment”, as explained below, in fact
mean different things.
66. Section 40(2)(a) refers to a person who “is under any
acknowledgment” of allegiance. Were Meaning 1 intended, then
section 40(2)(a) could have just said “acknowledges”. That is, to
rewrite the provision, it would say that the candidate “by virtue of
his own act, acknowledges his allegiance, obedience or adherence
to the foreign power or state”. Or, it could be put more
emphatically by referring to a person “who makes” or “who made”
an acknowledgment.
67. In fact, the distinction between “is under any acknowledgment”
and “make an acknowledgment” appears in the history of
provisions like section 40(2)(a). For example, the 1840 Canadian
legislation and the earlier drafts of section 44(i) of the Australian
Constitution in 1891 and 1897 disqualified anyone who had “made
an acknowledgment”, “made a declaration”, or “taken an oath”.
But then the final version of the Australian Constitution, and later
section 40(2)(a) of the Jamaican Constitution, changed the
wording from someone who “makes an acknowledgment” to
someone who “is under” any acknowledgment of allegiance.
68. So, the choice of wording in section 40(2)(a) was not a slip into a
cumbersome expression by a drafter, but the result of a deliberate
change from a narrow form of expression to a broader one. The
narrow form of expression—where the person “makes an
acknowledgment”—invokes Meaning 1. By contrast, the broader
form of expression—where the person “is under any
29
acknowledgment”—does not exclusively or specifically invoke
Meaning 1. Thus, Meaning 1 cannot lay claim to being the one and
only meaning of the provision. Instead, the broader form embraces
other meanings.
69. Moreover, if Meaning 1 is the only meaning, it is submitted that
there is a large degree of redundancy in section 40(2)(a). Section
40(2)(a) refers to a person who is “by virtue of his own act” under
any acknowledgment of allegiance. It is difficult, if not impossible,
to imagine circumstances where someone could “acknowledge”
something without that acknowledgment being performed “by
virtue of his own act”.
70. Therefore, if Meaning 1 is correct, then the phrase “by virtue of his
own act” is redundant. And, as far as possible, a word or phrase
must not be construed so as to be superfluous or redundant. This
is expressed in the maxim ut res magis valeat quam pereat—that a
word or phrase should have a distinct meaning rather than not
have it.
71. Thus, while “is under any acknowledgment” covers the situation of
Vaz’s applying for, renewing, and using his United States passport,
the phrase must mean something more than the Chief Justice has
determined. It demands a broader meaning that the Chief Justice
has ascribed.
2. “Any acknowledgment” can include any acknowledgment by the state
72. On a second meaning of “is under any acknowledgment”, which
we will label “Meaning 2”, “any acknowledgment” can include an
acknowledgment by the state, this being the state to which the
30
citizen owes allegiance (in the present case, this would be the
United States). Meaning 2 has several arguments in its favour,
which to some extent overcome the weaknesses of Meaning 1.
73. First, it is commonplace for a nation state to confer by law
citizenship that carries with it a duty of allegiance. This can be
done by requiring the person to take an oath, or by agreement,
declaration, legislation, executive instrument, or by some
combination of these. An obvious example is conferment of
citizenship, either by direct operation of a statute (as in the case of
Respondent Vaz) or by action of a person—for example, seeking
naturalisation, procedures for which take place under the authority
of a statutory provision.
74. Moreover, when a state confers a status such as citizenship that
carries with it a duty of allegiance, it invariably does so in a way
that legally imposes the allegiance. In consequence, the individual
is truly and statutorily “under” an “acknowledgment of allegiance”.
75. Second, if the state “acknowledges” allegiance in this way, then
the redundancy that arises with Meaning 1 is avoided. To refresh,
section 40(2)(a) refers to a person who “is, by virtue of his own
act, under any acknowledgment of allegiance”. As noted, it is hard
to imagine circumstances where someone could “acknowledge”
something without that acknowledgment being performed “by
virtue of his own act.”
76. By contrast, where the nation state is placing the individual under
an acknowledgment of allegiance, for example by conferring by
law the status of citizenship which carries the duty of allegiance,
31
there is no redundancy. However, while the state is responsible for
the conferment of citizenship, the citizen may also play a part by
their “own act” (discussed below).
77. Third, when Meaning 2 applies, section 40(2)(a) strikes at a legally
and formally recognised allegiance, as distinct from a purely
personal sense of allegiance that a person might have to another
state. Allegiance by its nature in this constitutional context logically
refers to legal allegiance. Legal allegiance is distinguished from a
mere personal sense of allegiance. This was well-illustrated in the
time of the Cold War when people in the West were “Soviet
sympathisers.” They did not owe legal allegiance to the Soviet
Union but did give it their personal and ideological allegiance.
78. On this view, the provision is not seeking to engage “thought
police” to detect those who deep down hold sympathies with and
personal allegiance to foreign powers. Instead, it is marking out for
political disqualification those who have formal legal allegiance to a
foreign power. An allegiance that is legally and formally recognised
is in keeping with the spirit of Section 40, which is concerned with
undivided public loyalties. Section 40 is not directed to some purely
personal sense of allegiance which a person might have to another
state.
79. Under Meaning 2, an acknowledgment can be made by either
party, the individual or the state. Although there are objections to
Meaning 1 in which the sole meaning is that only an individual can
perform the acknowledgment, those objections disappear where
either the individual or the state can be the cause of a person
being “under any acknowledgment”. Moreover, this meaning gains
32
support from the phrasing of section 40(2)(a). It refers to “any”
acknowledgment of allegiance.
3. Thus, Vaz was under “any acknowledgment” of allegiance not only because of his positive acts but also his United States citizenship and passport
80. It thus becomes clear that Respondent Vaz was under an
acknowledgment of reciprocal duties of allegiance to, and
protection from, the United States because he was under a legal
recognition of this allegiance. This legal recognition of allegiance
came from 2 additional sources than just Respondent Vaz’s
“positive acts”; it came from his United States citizenship and his
United States passport.
81. On the matter of citizenship, both Professor Rowe52 and George
Crimarco gave evidence that every citizen of the United States
owes and is under an acknowledgment of allegiance to the United
States: “All citizens owe allegiance to the United States. Yes,
United States Nationals owe allegiance to the United States”.53
That is the evidence of George Crimarco, Respondent Vaz’s own
witness on American law.54 The law is the same for Jamaica in
that every Jamaican owes and is under an acknowledgment of
allegiance to Jamaica.
82. As for the effect of Respondent Vaz’s holding a United States
passport, the evidence by Professor Rowe is that according to 22
USC 212 no passport should be granted or issued or verified for
52 Evidence of Professor David Rowe, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 82. 53 Evidence of George Crimarco, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 230. 54 Evidence of George Crimarco, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 230.
33
any person other than those owing allegiance to the United
States.55 Professor Rowe further stated that no passport lasts for
more than 10 years.56 George Crimarco also gave evidence that
by US law 22 USC 212 only persons owing allegiance to the United
States can be issued a United States passport.57 Crimarco also
states that under United States Law and case law a United States
passport is proof of allegiance to the United States.58 Mr Crimarco
in answer to Counsel for Appellant Dabdoub’s suggestion “that one
of the bases which entitles a person to a United States passport is
a person owing allegiance” gave evidence that it is “the only
basis”.59
83. The only question remaining is whether Vaz was under these
various acknowledgments “by virtue of his own act”.
84. In Joyce v DPP,60 the House of Lords held that the act of applying
for and renewing a British passport extended the allegiance to the
British Crown of an alien who had otherwise ceased to reside in
Britain:
“The terms of a passport are familiar. It is thus described by
Lord Alverstone CJ, in RR v Brailsford: ‘It is a document issued
in the name of the sovereign on the responsibility of a minister
of the Crown to a named individual, intended to be presented to
the governments of foreign nations and to be used for that
55 Evidence of Professor David Rowe, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 108. 56 Evidence of Professor David Rowe, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 108. 57 Evidence of George Crimarco, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 228, 326. 58 Evidence of George Crimarco, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 240. 59 Evidence of George Crimarco, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 326.
34
individual’s protection as a British subject in foreign countries.’
By its terms it requests and requires in the name of His Majesty
all those whom it may concern to allow the bearer to pass freely
without let or hindrance and to afford him every assistance and
protection of which he may stand in need. It is, I think, true
that the possession of a passport by a British subject does not
increase the sovereign’s duty of protection, though it will make
his path easier. For him it serves as a voucher and means of
identification. But the possession of a passport by one who is
not a British subject gives him rights and imposes upon the
sovereign obligations which would otherwise not be given or
imposed (emphasis added).”61
85. Equally, the United States Passport is “intended … to be used for
the individual’s protection as a [U.S.] subject in foreign countries.”
86. To adapt the words in Joyce to the present case, in issuing a
passport to Respondent Vaz, America “is assuming an onerous
burden”62 and Respondent Vaz, as holder of the passport, ‘is
acquiring substantial privileges”.63 Armed with an American
passport, Respondent Vaz “may demand from the State’s
representatives abroad and from the officials of foreign
governments that he be treated as an [American] subject, and
even in the territory of a hostile state may claim the intervention of
the protecting power”.64
60 Joyce v DPP [1946] AC 347. 61 Joyce v DPP [1946] AC 347, 369. 62 Joyce v DPP [1946] AC 347, 370. 63 Joyce v DPP [1946] AC 347, 370–1. 64 Joyce v DPP [1946] AC 347, 371.
35
87. While recognising the similarities between the present case and
Joyce, the Claimant also recognises the differences. But these
differences are immaterial. Joyce was an American citizen by birth,
resident in British territories, who was caught broadcasting for the
Germans. Joyce was a treason trial in the shadow of World War
II—and so had a broader context than an electoral dispute. But
that different context does not alter the legal effect of applying for,
holding, and travelling on a foreign passport.
88. Other differences with the present case are that Joyce was a
British resident and that he (wrongly) claimed to be a British
subject when obtaining the passport. But the House of Lords
placed no legal relevance on Joyce’s misleading statement about
his status as a British subject: “The essential fact is that he got
the passport.”65 Lord Jowitt LC said:
“The question is not whether he obtained British
citizenship by obtaining the passport, but whether by its
receipt he extended his duty of allegiance beyond the
moment when he left the shores of this country. As one
owing allegiance to the King he sought and obtained the
protection of the King for himself while abroad.”66
89. The terms “allegiance, obedience or adherence” in section 40(2)(a)
of the Jamaican Constitution come from English common law.
Therefore, the decision in Joyce that holding a foreign passport
involves a form of “allegiance” should be highly persuasive in
Jamaica. It is submitted that Vaz’s American passport is of the
65 Joyce v DPP [1946] AC 347, 369. 66 [1946] AC 347 at 370.
36
same and even greater effect than the British passport in Joyce’s
case, because there is no suggestion that Respondent Vaz
obtained it by any misrepresentation. However, the Joyce case
does show that one need not be a citizen of a particular country in
order to be under an “acknowledgement of allegiance” to that
country.
D. Element 4: For each of the 3 key facts, Vaz was under any acknowledgment of allegiance “by virtue of his own act”
90. To emphasise, we submit for the Appellant Dabdoub that, in the
present case, Respondent Vaz’s positive acts of applying for,
renewing, and travelling on his United States passport were
positive acceptance and recognition of his being under an
acknowledgment of allegiance which rendered him not qualified to
be elected to the House of Representatives. The Chief Justice
agreed with this submission. But counsel for Appellant Dabdoub
also submits that this is not the only basis on which Respondent
Vaz accepted or recognized that he was under any
acknowledgment of allegiance to the United States, a foreign
power, and was therefore disqualified by Section 40(2)(a).
91. Element 4 of section 40(2)(a) requires that the candidate,
Respondent Vaz in this case, is under any acknowledgment of
allegiance “by virtue of his own act”. What does “by virtue if his
own act” mean?
37
1. “By virtue of his own act” can be established by more than just positive acts
92. For Chief Justice McCalla, “by virtue of his own act” means a
“voluntary taking of steps” to acknowledge the citizenship.67 The
court held that “positive acts” were required, such as “renewing
and travelling on his United States passport”.68 This view says a
mere failure to take an act of renunciation of the citizenship is
insufficient. In other words, acquire the citizenship involuntarily
and then do nothing one way or the other, and he is not “by virtue
of his own act under any acknowledgment of allegiance”.
93. This view contradicts the evidence given by Respondent Vaz
himself. When asked by Counsel for Appellant Dabdoub, “Did you
at any time previous to the election of September 3, 2007
renounce your United States citizenship?”, Respondent Vaz replied
emphatically “Absolutely not”.69 When asked “rather than doing
that you decided to keep it”, Respondent Vaz replied: “I was born
a United States citizen. If I was born a citizen and did not
renounce it I became a citizen”.70 When pressed further,
Respondent Vaz made it clear that he did not seek to renounce his
United States citizenship and the decision to apply for a new
United States passport was one that he preferred to take rather
than renouncing his United States Citizenship.71
67 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 23. 68 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 33, 55. 69 Evidence of Daryl Vaz, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 283. 70 Evidence of Daryl Vaz, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 283. 71 Evidence of Daryl Vaz, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 283.
38
94. Limiting Section 40(2)(a) in the way the Chief Justice limited the
Section has a major weakness. It puts those who acquire foreign
citizenship involuntarily in a strange position. They would be able
to possess this foreign citizenship, owe the allegiance that it
demands, and still sit as a member of the House of
Representatives.
95. The purpose of Sections 39, 40, and 41 is to buttress faith in
Jamaica’s representative democracy, by ensuring citizens are
represented by Members of Parliament who are known to possess
sole, undivided allegiance to Jamaica. As shown above, candidates
can fall foul of the disqualification in either of 2 ways:
(i) if the law of another nation acknowledges that they owe
allegiance to that nation; or
(ii) if they have taken part in an acknowledging event, like
applying for or holding or using a passport or other right of
citizenship.
96. In either case, the candidate is both under an acknowledgment,
and perceived to be so. The acknowledgement is public and
knowable, and hence capable of undermining the perception and
reality that the candidate serve with sole loyalty to Jamaica.
Therefore, the Chief Justice’s limited view of “by virtue of his own
act” cannot be the law because it fails to embrace both
propositions. It allows persons with divided loyalties to serve in
Parliament, thereby defeating the very purpose of Sections 39,
40(2)(a), and 41(1)(d). “By virtue of his own act” must mean
something else.
39
2. “By virtue of his own act” includes a failure to renounce foreign citizenship
97. A person can acquire citizenship involuntarily and recognize or
accept their allegiance later. The Chief Justice accepted as much.
Vaz acquired his United States citizenship by birth. All persons born
in the United States acquire their citizenship by birth. In both
cases, the acquisition is not voluntary. Vaz retained this American
citizenship from then on, even though he was legally able to
renounce it. Vaz is in no different position to the person born in
the United States who retains the American citizenship from birth
on, even though he is legally able to renounce it. The Chief Justice
held that if this was all that happened, then Respondent Vaz “had
obtained American Citizenship involuntarily and no question of
disqualification could have arisen.”72 On the other hand, things
changed when Vaz took steps “to acknowledge that citizenship”.73
This created the difference. Now Vaz’s citizenship was voluntary,
resulting in his being “not qualified to be elected.”74
98. Similarly, a person can acquire citizenship involuntarily and
recognize or accept their allegiance later by “concurring in the
possession of the foreign nationality,”75 or by acquiescing in it.76
For example, a child is born to a mother who is a citizen of a
country, and by virtue of birth to a citizen, the law of the country
72 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 33. 73 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 33. 74 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 33. 75 Michael Pryles, ‘Nationality Qualifications for Members of Parliament’ (1982) 8 Monash University Law Review 163, 174. 76 Sykes v Cleary (No 2) (1992) 176 CLR 77, 127 per Deane J.
40
makes the child a citizen. At the time of their birth, and for some
time after that, there has been no act of recognition or
acceptance. But, as time passes, the person eventually reaches the
age of legal majority. At this point, they are in a position to
renounce their foreign citizenship. If there are reasonable steps for
renunciation available, and that person fails to take them, then
that person is under an acknowledgment of allegiance “by virtue of
his own act”.
99. This meaning of “by virtue of his own act” is nothing strange.
Statutes quite often interpret “act” as including “a failure to act”.
Also, whether something is a “positive act” or whether it is “a
failure to act” is not always clear. For example, a failure to
terminate a relationship amounts to a positive “retention” of that
relationship.77 Moreover, interpreting “by virtue of his own act” to
include a failure to renounce foreign citizenship is supported both
by the Jamaican constitutional scheme and by judicial authority, as
shown below.
100. Unless “by virtue of his own act” includes a failure to renounce
foreign citizenship, then there will be at least 2 strange outcomes.
First, assume Person 1 is born a citizen of a foreign country. They
do not relinquish their citizenship but keep it. Assume Person 2 is
not born a citizen of a foreign country. However, they successfully
apply for foreign citizenship. By this means, they end up like
Person 1 as a citizen of a foreign country. In this regard, Person 1
and Person 2 are in exactly the same position. However, if “act”
refers only to a “positive act”, then Person 2 is disqualified from
77 176 CLR 77, 128.
41
standing for the legislature while Person 1 is not. This is
anomalous. If being a foreign citizen is not acceptable for Person
2, then why is it not equally unacceptable for Person 1? This
outcome offends our notion of equality before the law.
101. The second strange outcome entails considering section 40(2)(a)
of the Jamaican Constitution with section 41(1)(d). Section
41(1)(d) of the Jamaican Constitution says the seat of a Member
of either House shall become vacant if the Member “concurs in or
adopts any act done with the intention that he becomes a subject
or citizen of a foreign power”.78 On the surface, section 41(1)(d)
seems wider than section 40(2)(a) because it disqualifies a
Member if he concurs in or adopts any acts done (presumably by
others) with the intention that he shall become a foreign citizen.
102. But if “by virtue of his own act” in section 40(2)(a) is read to mean
only a positive act, then an anomaly arises with a candidate who
has acquired citizenship by birth and has failed to renounce it. The
candidate is protected under section 40(2)(a) when he is
nominated because it does not disqualify him. But, once elected,
he would then have to vacate his seat under section 41(1)(d)
when he is sworn in as a Member of Parliament because he has
concurred in and adopted the foreign citizenship.
103. Obviously, there is a simple way to avoid these strange results.
This is done through interpreting “by virtue of his own act” as
including failing to take an act. In this context, the significant
failing would be “failing to take all reasonable steps necessary to
divest oneself of foreign nationality”.
42
104. This view that “by virtue of his own act” includes an omission to
renounce a citizenship that is acquired involuntarily is supported by
judicial authority and by academic writing.
105. Section 40(2)(a) writes “by virtue if his own act” into the text of
the Constitution. In other countries, courts have read the notion of
“by virtue if his own act” into the relevant provision even though
the words do not appear. One example is the Australian provision
in section 44(i) of the Constitution.
106. While the words “by virtue of his own act” do not appear in section
44(i) of the Australian provision, in Sykes v Cleary (No 2)79 Justice
Deane read into the words of section 44(i) “a similar mental
element”.80 In consequence, he required an “element of
acceptance or at least acquiescence on the part of the relevant
person”.81
107. Michael Pryles argues that the element of a voluntary “act” can be
shown by the person “concurring in the possession of the foreign
nationality” in any of “a number of ways”.82 For example, if “the
foreign state permits its nationals to divest themselves of their
78 Emphasis added. 79 Sykes v Cleary (No 2) (1992) 176 CLR 77, 107 (Mason CJ, Toohey and McHugh JJ), 113 (Brennan J), 128 (Deane J), 131 (Dawson J), and 139 (Gaudron J). 80 Sykes v Cleary (No 2) (1992) 176 CLR 77, 127. 81 Sykes v Cleary (No 2) 176 CLR 77, 127 82 Michael Pryles, ‘Nationality Qualifications for Members of Parliament’ (1982) 8 Monash University Law Review 163, 174.
43
nationality, a failure to do so could demonstrate that the holding of
the foreign nationality is voluntary”.83
108. The Australian cases clarify the purpose of “by virtue of his own
act”. “By virtue of his own act” guards against a foreign power,
which, by inadvertence or with mischievous intent, enacts an
unduly wide provision for non-voluntary acquisition of citizenship.
Citizenship is conferred by legislation without reference to the
wishes of the person on whom it is imposed. Thus, by this means,
the foreign country could interfere with the political and
constitutional operation of another country if there was no
requirement for acceptance or recognition of the conferment of
citizenship which places person under an acknowledgment of
allegiance. Section 40(2)(a) guards against innocent losses of
political rights such as candidacy, by requiring some acceptance or
recognition whether by positive action or omission or failure to
take all reasonable steps to renounce.
109. In Sue v Hill,84 the High Court addressed this very question—the
potential unfairness of disqualifying a candidate who had inherited
citizenship.85 They held that the Australian provision implicitly
imposed a requirement of voluntariness and that mere acquisition
of the citizenship did not amount to voluntary acquisition.
However, they read into the constitutional provision the
requirement that a candidate in this position must take all
83 Michael Pryles, ‘Nationality Qualifications for Members of Parliament’ (1982) 8 Monash University Law Review 163, 174. 84 Sue v Hill (1999) 199 CLR 462. 85 Sue v Hill (1999) 199 CLR 462.
44
reasonable steps to renounce their foreign citizenship, as far as the
foreign country’s laws allow.86
110. Thus, acceptance, concurrence, or acquiescence can occur in other
ways than just a positive act. This has 2 requirements. (i) There is
an available mechanism for renouncing citizenship. (Obviously,
where there is no mechanism for renouncing citizenship, failure to
renounce cannot amount an act of acceptance, concurrence,
acquiescence, or recognition, or a voluntary act.)87 (ii) After the
time when the person acquires the legal capacity to do so, the
person fails to renounce, to “extinguish”,88 or to “relinquish”89 the
citizenship, or at least they fail to take all reasonable steps to do
so.
111. So, as long as the person fails to take all reasonable steps to
renounce their foreign citizenship, then they possess it by virtue of
their own act. This interpretation squares with the spirit and intent
of the provision and conforms with the similar spirit and intent of
Section 41(1)(d). If a person can do something to renounce
foreign citizenship and takes no reasonable steps to do so, then
they are accepting, affirming, recognizing, and holding the foreign
citizenship by virtue of their own act—the act of omission,
acceptance, affirmation or recognition—and that foreign citizenship
carries with it the duties of allegiance to the foreign state. This
view avoids the inherent weaknesses and strange outcomes
86 See, for example, 199 CLR 462 at 529 (Gaudron J). 87 Michael Pryles, ‘Nationality Qualifications for Members of Parliament’ (1982) 8 Monash University Law Review 163, 173–174. 88 Sykes v Cleary (No 2) (1992) 176 CLR 77, 128 per Deane J. 89 Sykes v Cleary (No 2) (1992) 176 CLR 77, 127 per Deane J.
45
(described above) that affect the alternative view that the court
below preferred. It is also strongly supported by judicial authority.
112. What amounts to the taking of “reasonable steps” depends on the
circumstances of the particular case.90 What is reasonable will turn
on the situation of the individual, the requirements of the foreign
law, and the extent of the connection between the individual and
the foreign state of which he or she is alleged to be a subject or
citizen.91
3. Thus, Vaz was under an acknowledgment of allegiance “by virtue of his own act” not only because of his positive acts but also his United States citizenship and passport
113. On this proper view of section 40(2)(a), the Constitution
disqualifies Respondent Vaz on the basis of his United States
citizenship. American citizenship law allowed him to renounce his
American citizenship. This was the evidence given by Mr George
Crimarco.92 For example, section 349(a)(5) of the Immigration and
Nationality Act provides for the loss of nationality by voluntarily
performing the following act with the intent to relinquish their
American nationality. It involves:
“(5) making a formal renunciation of nationality before a
diplomatic or consular officer of the United States in a foreign
state, in such form as may be prescribed by the Secretary of
State.”
90 Sykes v Cleary (No 2) (1992) 176 CLR 77, 108. 91 Sykes v Cleary (No 2) (1992) 176 CLR 77, 108. 92 Evidence of George Crimarco, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 235, 236.
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114. Respondent Vaz knew he was an American citizen. He knew he
was under an acknowledgment of allegiance to the United States.
This is evidenced by his testimony when he replied “I am a citizen”
in answer to Counsel for the Appellant’s question “Do you agree
with me that in return for the protection of the United States you
must have some obligation to the United States?”.93 Vaz decided to
keep the status of United States citizen. On his own admission
under cross-examination, Vaz’s evidence is that he had done
nothing to renounce, extinguish, or relinquish his American
citizenship. On the evidence before the Court, Respondent Vaz
clearly made a conscious decision to keep his United States
citizenship rather than to renounce it.94 Vaz’s “act” was the choice
he made once he reached the age of legal majority to not
renounce his American citizenship.
115. Moreover, Vaz was not only happy to keep his citizenship, he
actively exploited a core legal element of that citizenship, by
availing himself of the fact and benefits of a United States passport
on various occasions.
116. Respondent Vaz prior to and subsequent to nomination travelled
on his United States passport both leaving and entering
Jamaica.95The evidence of George Crimarco is that when someone
presents a United States passport at a port of entry to an
Immigration Officer he is holding himself out as a United States
93 Evidence of Daryl Vaz, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 286. 94 Evidence of Daryl Vaz, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 283. 95 See Exhibit 5A and 5b and Exhibit 15.
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citizen.96He gave evidence that when Respondent Vaz presented
his United States passport to gain entry to Canada, to gain entry to
Thailand, to gain entry to St Maarten, he presented himself as a
United States citizen owing allegiance to the United States.97
117. The evidence of Respondent Vaz is that when he travelled to these
various countries on his United States passport he did so
voluntarily and he presented his passport to the various
immigration authorities as a United States citizen.98 He went on to
further testify that it was his own decision to travel to these
countries including “presenting the passport on each occasion to
the relevant authorities".99 Respondent Vaz also registered after
attaining the age of 18 years at the Miami-Dade Community
College as a United States citizen.100
118. The necessary element of voluntariness contemplated by the
phrase “by virtue of his own act” is therefore established, by
Respondent Vaz’s own evidence; and another fact creating
Respondent Vaz’s disqualification, in addition to his holding (and
using and renewing) a United States passport, is the United States
citizenship that Vaz chose to keep.
96 Evidence of George Crimarco, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 342. 97 Evidence of George Crimarco, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 343. 98 Evidence of Daryl Vaz, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 264. 99 Evidence of Daryl Vaz, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 266, 267,268. 100 Evidence of Daryl Vaz, Transcript of Notes of Evidence, Record of Appeal, Vol 2, 266.
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VOTES THROWN AWAY
IV. Introduction—Appellant Dabdoub Makes 3 Key Submissions about the Notice to the Electors
119. This submission addresses the second main issue in Civil Appeal
No 45 of 2008—If Respondent Vaz was not qualified to be elected,
then did the voters have sufficient notice of the facts creating the
disqualification such that their votes for Vaz were thrown away and
the Appellant ought to be returned as the duly elected Member of
Parliament for Western Portland?
120. In the court below, Chief Justice McCalla did not throw away the
votes for Respondent Vaz because she mistakenly concluded that
the voters did not have definite knowledge of the facts that
disqualified Respondent Vaz:
“the voters must have definite knowledge of the facts that
disqualify a candidate from being eligible at the time of the
election.”101
121. For Chief Justice McCalla, the facts that disqualified Respondent
Vaz was Vaz’s renewing and travelling on his United States
passport as an adult:
“I base my finding of acknowledgment of allegiance, obedience
or adherence on positive acts by the first respondent of
applying for renewal and travelling on his American passport as
an adult.” 102
101 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 37, referring to Peiris v Perera (1969) 72 New Law Reports of Ceylon 232. 102 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 44.
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122. Counsel submits on behalf of the Appellant that the Constitution of
Jamaica does not speak of, nor necessarily infer, the word
“positive” into the meaning of “by virtue of his own act”. The Chief
by so restricting the meaning of the phrase is in effect rewriting
the Constitution rather than giving the phrase the meaning
intended by the framers and supported by case law.
123. When assessing whether the electorate had definite notice of the
facts that disqualified Respondent Vaz, Chief Justice McCalla clearly
recognized that both the notoriety and public notice requirements
had been met. For example, she said in her Judgment:
“In this regard evidence adduced from numerous persons by
the Petitioner was unchallenged and not contradicted.103
Further, a Fixed Date Claim form which particularized the first
respondent’s disqualification received widespread publication in
the media”.104
124. But despite this, Chief Justice McCalla fell into error when she went
on to find that the “Votes Wasted” or “Votes Thrown Away” rule
did not apply in the present case. The Chief Justice believed “there
was no sufficient notice based on facts which are clear, definite
and certain”.105 Specifically, the Chief Justice found:
(a) “It must be noted that the notice of disqualification merely
states that Daryl Vaz “is a citizen of a foreign power or
state… and is the holder of a passport issued to him by the
103 Record of Appeal, Vol 1, 241–384. 104 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 40. 105 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 50.
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Government of the United States of America”. It does not
state any act of acknowledgment by [Vaz]. Therefore it does
not satisfy the legal requirements of being clear, definite and
certain”; 106
Counsel submits that an examination of the front page of the
Notice of Disqualification reveals that it was based on the
clear, definite, and certain facts of Vaz’s being a citizen of the
United States and the holder of a United States passport
(evidence of which was given as to Vaz’s admission).107
(b) the act of renewing and travelling on a passport are acts of
“conduct” that require adjudication by a court;108 and
(c) the facts were also in dispute because of the notice of the
Director of Elections, which meant that the facts were not
“clear, definite and certain” so as to allow invocation of the
Votes Thrown Away doctrine.109
The errors in law in (b) and (c) are dealt with in detail later in
this submission.
125. In this submission, Counsel for Appellant Dabdoub contends:
(i) Chief Justice McCalla misinterprets “acknowledgment” by
concluding that Appellant Dabdoub needed to give notice of
Vaz’s “positive acts”; but even if Appellant Dabdoub did have
to give notice of Vaz’s “positive” acts, then Dabdoub’s notice
106 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 45. 107 Record of Appeal, Vol 1, Affidavit of Abraham Dabdoub, 61–62, paras 16 and 17; Particulars 17 and 18 of the Fixed Date Claim Form (Election Petition), page 39. 108 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 50. 109 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 50.
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does satisfy the requirements, properly understood, of being
“clear, definite, and certain”;
(ii) Chief Justice McCalla misunderstood the difference between
“facts” which create a “status” prior to nomination
which makes a person not qualified to be elected and
renders the nomination null and void and “facts”
which arise after nomination and makes null and void
the election of the candidate; and
(iii) The dispute over Mr Vaz’s disqualification is no bar to votes
being thrown away.
126. Before detailing the specific errors Chief Justice McCalla has made,
counsel for Appellant Dabdoub submits that the Chief Justice ought
to have taken into account the following three facts:-
A. The Electors Had Definite Notice of Vaz’s United States Citizenship
B. The Electors Had Definite Notice of Vaz’s Holding A United States Passport
C. The Electors Had Definite Notice of Vaz’s Applying for, Renewing, and Travelling on His United States Passport
127. In Jamaica, the Passport Act makes it clear that passports may be
issued to citizens of Jamaica and shall not be valid for more than
10 years.110 Further, the Passport Regulations 1962 state that
every citizen of Jamaica who is desirous of obtaining a passport
shall apply on the appropriate form.111 Clearly, the average adult
110 Passport Act, Sections 3(1) and Section 6(2). 111 Passport Regulations 1962, Section 9(1).
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Jamaican therefore knows, expects, and believes that passports do
not last forever. Clearly, the average Jamaican also knows,
expects, and believes that those who have a passport must have
applied for it and must have applied to renew it. These are well-
known and notorious facts which the average person in West
Portland must be taken to have notice of once they are told that
Vaz is the holder of a Passport issued by the United States of
America. It is clear then, that the Appellant Abraham Dabdoub, the
only lawfully nominated candidate, must be returned as the duly
elected Member of the House of Representatives for the
constituency of West Portland.
V. Summary of Law
128. Where there is a lack of qualification, disabling illegality, or legal
incapacity in relation to a candidate in an election, one remedy is
to hold the election again. Another is to award the seat to the best
supported lawful candidate by applying the “Votes Wasted” or
“Votes Thrown Away” doctrine.
129. The “Votes Wasted” or “Votes Thrown Away” doctrine is a long-
established rule, dating to at least the early 1700s,112 and is
applied when the election was conducted with knowledge that the
candidate in question was not qualified to be elected and therefore
not qualified for nomination and whose nomination would be null
and void and of no legal effect.
112 For example, R v Boscawen (1714) Easter 13 Anne cited in R v Monday (1777) 2 Cowper’s Reports 1224, 1228.
53
130. In Peiris v Perera,113 Justice Weeramantry regarded the policy
behind the rule as resting on the broad consideration “that the
dignity and decorum which must attend the Parliamentary process
are at all costs to be preserved”.114 Central to this is that it is
“essential” that “only candidates qualified in law to be Members of
the Parliament should offer themselves to the electorate.”115
131. According to Justice Weeramantry, candidates who labour under a
disqualification which by law prevents them from taking their seat
in Parliament “go to the polls at their peril, and those who vote for
them with knowledge of the facts grounding such a disqualification
record their votes in vain”.116 This is a principle:
“now ingrained in the law relating to elections and ingrained for
the very good reason that which must attend the Parliamentary
process are at all costs to be preserved.”117
132. Otherwise, a candidate labouring under a disqualification resulting
from known facts may:
“offer himself repeatedly for election to an electorate which
accepts him again and again, only to be declared disqualified on
each occasion by the Courts.”118
113 (1969) 72 New Law Reports of Ceylon 232. 114 Peiris v Perera (1969) 72 New Law Reports of Ceylon 232, 271. 115 Peiris v Perera (1969) 72 New Law Reports of Ceylon 232, 271. 116 Peris v Perera (1969) 72 New Law Reports of Ceylon 232, 271 (emphasis added). 117 Peris v Perera (1969) 72 New Law Reports of Ceylon 232, 271 (emphasis added). 118 Peris v Perera (1969) 72 New Law Reports of Ceylon 232, 271.
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133. The Parliamentary process “cannot thus be permitted to be
brought into disrepute or exposed to ridicule”.119 Nor can the
courts:
“countenance the possibility, inherent in such a situation, of a
constituency being thus kept indefinitely without proper
representation in Parliament at the will of persons inclined for
reasons of their own to resort to such conduct.”120
134. Such possibilities, Justice Weeramantry said, should “not be
permitted to mar the procedures essential to the proper
constitution of Parliament”.121
135. These policy factors are strengthened by consideration of the role
of political parties. While they are groups formed in the private
sphere by free association of like-minded people, they have a
public face as the body that gathers in and sponsors candidates for
an election. They also have a recognised constitutional role,
though not expressly stated in the Constitution. After the election,
under the conventions of responsible government, those
commissioned to be Ministers of the Crown as part of the
government are those proffered for that office by the party that
has won a majority of seats in the election (or a coalition of parties
who have secured a majority in combination). In some cases,
parties are also funded out of the public purse.
119 Peris v Perera (1969) 72 New Law Reports of Ceylon 232, 271. 120 Peris v Perera (1969) 72 New Law Reports of Ceylon 232, 271. 121 Peris v Perera (1969) 72 New Law Reports of Ceylon 232, 271.
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136. Given the place of political parties, is it asking too much that they
be responsible for ensuring as far as is within their power that their
candidates are qualified? Consequently, is it unfair for the law to
impose the principle of wasted votes on a candidate, the
candidate’s party, and the supporters of the party, because the
party and the candidate are jointly responsible for the ensuing
illegality when a candidate is not qualified?
137. There is a further consideration, resting on the requirement that
the rule operates only where the facts giving rise to the
disqualification is well-established and widely known, as in the
present case. In these circumstances, for an elector to vote for
such a candidate is aptly categorised as “wilful perverseness”.122 A
majority of the electorate have chosen to vote for a candidate who
is disqualified or have “wilfully incurred the risk” of losing their
vote.123 In doing this, they are knowingly wasting their votes or,
put another way, they are utilising their franchise for a purpose for
which it was not intended. As the maxim says, volenti non fit
injuria. There is no injury for something to which a person
consents.
VI. Chronology of Cases
138. Many cases have explained and applied the Votes Thrown Away
rule, which is a rule of law. Before analysing these cases and
applying their findings to the present case, counsel for Appellant
Dabdoub will set out a chronology of cases that have clarified and
applied the Votes Thrown Away rule. This chronology is by no
122 Halsbury’s Laws of England (4th ed) para [835] quoted in Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 45.
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means comprehensive, but the chronology is sufficient to show:
(i) the variety of circumstances in which votes have been thrown
away;
(ii) that seating the candidate with the highest number of legal
votes is nothing unusual; in fact, it is the right and natural
result, whereas having a by-election is the exception; and
(iii) whether the disqualifying facts are “clear, definite, and
certain” depends on whether it is reasonably clear to the
electors that the facts creating the disqualification are true.
There are several ways the Court can satisfy itself that the
facts were reasonably established as true to the electorate.
For example, the facts may be obvious or notorious, or they
may be proved facts, or unchallenged or admitted facts.
Crucially, whether it is reasonably clear to the electors that
the facts creating the disqualification are true does not
depend on any legal distinction between mythically pure
“status” facts and inherently uncertain “conduct” facts as the
Chief Justice wrongly believed.
139. In R v Boscawen (1714),124 the fact that created the candidate’s
disqualification was his non-inhabitancy. Lord Chief Justice Parker,
and the whole court, held that votes cast for the candidate were
thrown away.125
123 Wakefield Case (1842) Barron and Austin’s Election Cases 270, 317 (emphasis added). 124 (1714) Easter 13 Anne cited in R v Monday (1777) 2 Cowper’s Reports 1224, 1228. 125 (1714) Easter 13 Anne cited in R v Monday (1777) 2 Cowper’s Reports 1224, 1228.
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140. In Malden (1715),126 Serjeant Comyns was disqualified because he
refused to follow a statutory requirement to swear to his
qualification. The votes for Serjeant Comyns were thrown away
and the petitioner, Mr Tuffnell, was duly elected.127
141. In Cockermouth (1717),128 the elected candidate, Sir Wilfred
Lawson, was proved to be under 21 years of age. Votes for
Lawson were thrown away and the Committee of the House of
Commons seated the petitioner, Lord Percy Seymour.129
142. In R v Whithers (1735),130 several people voted for 2 candidates
jointly in an election to fill a single vacancy of a burgess. The court
held the double votes were “absolutely thrown away”.131
143. In Southampton (1776),132 the principle was admitted to be:
“Where there is a legal incapacity, and the fact of a candidate’s
being under such incapacity is known, the votes for him are
thrown away”.133
144. A few years later in Kirkcudbright (1781),134 the House resolved
that in 1781 the elected candidate, Mr Gordon, was guilty of
bribery. The petitioner, Mr Johnstone, at the next election
126 (1715) 18 Journ 126 noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 499. 127 (1715) 18 Journ 126 noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 499. 128 (1717) 18 Journ 673 noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 499. 129 (1717) 18 Journ 673 noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 499. 130 (1735) Easter 8 Geo 2 cited in R v Monday (1777) 2 Cowper’s Reports 1224, 1228. 131 R v Whithers (1735) Easter 8 Geo 2 cited in R v Monday (1777) 2 Cowper’s Reports 1224, 1228. 132 (1776) Clifford 224 noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 500. 133 (1776) Clifford 224 noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 500. 134 Noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 500.
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produced an attested copy of that resolution to the electors and
informed them of Gordon’s incapacity to be elected. The House
seated petitioner Mr Johnstone, the votes for Gordon having been
thrown away.135
145. In Flint (1797),136 the petitioner, Mr Lloyd, gave public notice of
Sir T Mostyn’s age of minority. Mr Lloyd was seated, the votes for
Sir Mostyn being thrown away.137
146. In R v Hawkins (1808),138 the fact that created the candidate’s
disqualification was that the candidate had not taken the Holy
Sacrament within a year, which the candidate admitted;139 a notice
of the incapacity was given to the electors. Their votes were
thrown away.140
147. In the Leominster Case (1819),141 the Committee of the House of
Commons found that the candidate was disqualified for refusing to
take the oath confirming his qualification; the votes cast for the
candidate were thrown away.142 The note to the Leominster Case
says:
“This principle at least, has been established, that where the
disqualification is created by statute, and the fact bringing the
party within the operation of the act, is uncontradicted and
135 Noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 500. 136 Noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 500. 137 Noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 500. 138 (1808) 103 ER 755. 139 R v Hawkins (1808) 103 ER 755, 757. 140 R v Hawkins (1808) 103 ER 755, 758. 141 (1819) Corbett and Daniell’s Election Cases 1.
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notorious, a candidate labouring under such disqualification, is
no longer eligible, and for the purposes of the then election, to
be considered as one not in esse,143 and that this principle is
established, both by decisions of the House of Commons and
the courts of law.” 144
148. The disqualification in Leominster was created by statute “of which
no-one is to be deemed ignorant”.145 The application of the statute
was made notorious—“not only by the notice of the opponent—but
by the refusal of the party himself”.146 These facts “brings this case
quite within the principle of the cases before alluded to, in which
votes have been held to have been thrown away”.147
149. In the Wakefield Case (1842),148 the candidate was said to have
been disqualified by virtue of his being the Returning Officer.149
Whether the candidate was, in fact, the Returning Officer was “the
subject, for two days, of laborious discussion and grave
deliberation”.150 This was at a time when there was no radio or
electronic media. Counsel for the candidate argued that:
“It may therefore be reasonably inferred, that it was a matter of
considerably uncertainty and doubt, such as the electors were
142 Leominster Case (1819) Corbett and Daniell’s Election Cases 1, 12. 143 “In existence”. 144 Leominster Case (1819) Corbett and Daniell’s Election Cases 1, 13. 145 Leominster Case (1819) Corbett and Daniell’s Election Cases 1, 19. 146 Leominster Case (1819) Corbett and Daniell’s Election Cases 1, 19. 147 Leominster Case (1819) Corbett and Daniell’s Election Cases 1, 19. 148 Wakefield Case (1842) Barron and Austin’s Election Cases 270. 149 Wakefield Case (1842) Barron and Austin’s Election Cases 270, 295. 150 Wakefield Case (1842) Barron and Austin’s Election Cases 270, 313.
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not competent to solve at the moment when they came to poll.
It was a question that involved matter both of doubtful law and
disputed fact”.151
150. But counsel for the petitioner successfully argued that the Votes
Thrown Away doctrine will not be avoided because of the fact that
the disqualification is a matter of legal inference, or may be the
subject of judicial interpretation:152
“If it turns out that the candidate was in point of law ineligible
at the time of the election, it must be later that those who voted
for him, after notice, knew of his ineligibility, and wilfully
incurred the risk of losing their franchises”.153
151. The notice is sufficient if it had “put the party on inquiry, and
thrown on him the obligations of ascertaining whether the ground
of disqualification did not still exist”. 154 In the Wakefield Case:
“the reason of the disqualification did not involve any abstruse
or doubtful points of law; it was such as might strike the most
uninformed, from the obvious incompatibility of the characters
of candidate and returning officer”.155
152. The Committee resolved that votes were thrown away. 156
151 Wakefield Case (1842) Barron and Austin’s Election Cases 270, 313. 152 Wakefield Case (1842) Barron and Austin’s Election Cases 270, 317. 153 Wakefield Case (1842) Barron and Austin’s Election Cases 270, 317. 154 Wakefield Case (1842) Barron and Austin’s Election Cases 270, 319. 155 Wakefield Case (1842) Barron and Austin’s Election Cases 270, 318. 156 Wakefield Case (1842) Barron and Austin’s Election Cases 270, 319.
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153. In Horsham Second Case (1848),157 the petitioner notified the
electorate that the candidate, Mr Fitzgerald, was guilty of bribing
voters in an election held the year before, in 1847.158 The
petitioner’s Notice included facts that Fitzgerald had given voters
meat, drink, and entertainment to influence the voters’ decision in
1847 and was therefore ineligible by statute for the vacancy in
1848.159 (Legal incapacity)
154. The candidate argued that the bribery allegation had not been
proved at the time of the 1848 poll.160 The petitioner argued:
“The rule of law on the subject is, that if it was afterwards
proved that in point of fact a disqualification did exist at the
time of election, and that due notice thereof was given to the
electors, the votes of such electors given for such candidate
must be deemed to have been thrown away.” 161
155. The Committee found that the candidate was guilty of bribery in
1847 and was therefore disqualified in 1848.162 The Committee
agreed that votes for the candidate had been thrown away.163
156. In Drinkwater v Deakin (1874),164 the petitioner, Herbert
Drinkwater, claimed that the respondent, James Deakin, had, on
157 (1848) 1 Powell, Rodwell, and Dew’s Election Cases 240. 158 Horsham Second Case (1848) 1 Powell, Rodwell, and Dew’s Election Cases 240, 247. 159 Horsham Second Case (1848) 1 Powell, Rodwell, and Dew’s Election Cases 240, 258. 160 Horsham Second Case (1848) 1 Powell, Rodwell, and Dew’s Election Cases 240, 259. 161 Horsham Second Case (1848) 1 Powell, Rodwell, and Dew’s Election Cases 240, 259. 162 Horsham Second Case (1848) 1 Powell, Rodwell, and Dew’s Election Cases 240, 256. 163 Horsham Second Case (1848) 1 Powell, Rodwell, and Dew’s Election Cases 240, 259. 164 Drinkwater v Deakin (1874) 9 LRCP 626.
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the day of Deakin’s nomination and the day after nomination,
bribed voters for the purposes of influencing their votes at the
upcoming election. On election morning, before the electors voted,
Drinkwater (or his agents) gave printed notice to the electors
outlining the bribery claim.165
157. Deakin won the election but Drinkwater claimed the seat, arguing
that votes for Deakin had been thrown away. After the election, a
court found that Deakin had indeed been guilty of bribery before
polling day.166 The Court of Common Pleas held that bribery by a
candidate at an election renders his election void if he be found
guilty of bribery, but not until the candidate has been found
guilty.167 As a result, Deakin’s conduct avoided his election but
votes for him were not thrown away.168 In Drinkwater, it is the
election that was null and void—a “conduct” case. It was not the
nomination that was void as even the Chief Justice said in
Dabdoub v Vaz—a “status” case.
158. More relevantly to the present case, in the Tipperary Case
(1875),169 the petitioner, Mr Moore, sought to avoid the election
and return of Mr Mitchell and claim the seat for himself. Mr Moore
contended, among other things, that Mr Mitchell: (i) was at and
previous to the election, a naturalised citizen of the United States
and thus an alien;170 and (ii) had been, while a British subject,
165 Drinkwater v Deakin (1874) 9 LRCP 626, 633. 166 Drinkwater v Deakin (1874) 9 LRCP 626, 632, 634. 167 Drinkwater v Deakin (1874) 9 LRCP 626, 626. 168 Drinkwater v Deakin (1874) 9 LRCP 626, 640. 169 County of Tipperary (1875) 3 O’Malley and Hardcastle 19. 170 County of Tipperary (1875) 3 O’Malley and Hardcastle 19, 35.
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tried and convicted of treason-felony and sentenced to 14 years’
transportation.171
159. Justice Keogh found that the electors had sufficient notice that Mr
Mitchell was a felon and:
“the fact of having been made aware of the facts upon which
one ground of disability is based, ought to have put them on
inquiry as to the other, and that having received due notice that
Mr Mitchell was an alien, they were bound to satisfy themselves
upon the subject and if it should turn out to be a disqualification
destroying his status as a candidate, they must be held to have
voted him with knowledge of the fact, and subject to the
consequences of having their votes thrown away.”172
160. Referring to Drinkwater v Deakin, Justice Lawson said that the
judges in Drinkwater:
“laid down in that case that felony and alienage are such
disqualifications, that if notice of them is given to the electors
the votes given for a person thus disqualified are thrown away
… Both on the authority of Trench v Nolan, and of Drinkwater v
Deakin, when once we arrive at the conclusion that there were
these two disqualifications and notice to the electors, it
necessarily follows that the other candidate must be declared
duly elected”.173
161. Justice Morris agreed. He said:
171 County of Tipperary (1875) 3 O’Malley and Hardcastle 19, 35. 172 County of Tipperary (1875) 3 O’Malley and Hardcastle 19, 39–40. 173 (1875) 3 O’Malley and Hardcastle 19, 45.
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“while the Court of Common Pleas [in Drinkwater v Deakin]
declined to seat Mr Deakin, in giving illustrations and instances
of cases in which a man would be clearly disqualified, so as to
entitle his opponent to claim his seat, one of the very instances
given is that of a convicted felon. I now come to the question of
alienage. If the other question is clear, this one of alienage is, if
possible, clearer.”174
162. Justice Keogh also agreed: “Lord Coleridge distinctly puts [in
Drinkwater v Deakin] the case of there being no question at all of
its being an inherent disqualification to the candidate that he was
either an alien or a convicted felon”.175 As a result, the court
seated the petitioner Mr Moore in place of Mr Mitchell.176
163. In Beresford-Hope v Sandhurst (1889),177 the respondent, Lady
Sandhurst, obtained a majority of votes over the petitioner, Mr
Beresford-Hope, and was declared to be elected a member of a
county council.178 Beresford-Hope had objected to Sandhurst’s
nomination by notices in writing that the respondent was a woman
and was therefore disqualified.179
164. The English Court of Appeal held that a woman was incapable of
being elected as a member of a county council.180 The court
further held that votes for Lady Sandhurst were thrown away and
174 (1875) 3 O’Malley and Hardcastle 19, 46. 175 (1875) 3 O’Malley and Hardcastle 19, 45, 49. 176 (1875) 3 O’Malley and Hardcastle 19, 49. 177 (1889) 23 QBD 79. 178 Beresford-Hope v Sandhurst (1889) 23 QBD 79, 79. 179 Beresford-Hope v Sandhurst (1889) 23 QBD 79, 79.
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that Beresford-Hope was duly elected.181 In reaching this
conclusion, Justice Stephen quoted the general principle laid down
in Gosling v Veley:
“Where the majority of electors vote for a disqualified person in
ignorance of the fact of disqualification, the election may be
void or voidable, or, in the latter case, may be capable of being
made good, according to the nature of the disqualification. The
objection may require ulterior proceedings to be taken before
some competent tribunal, in order to be made available; or it
may be such as to place the elected candidate on the same
footing as if he never had existed and the votes for him were a
nullity … [I]f the disqualification be of a sort whereof notice is
to be presumed, none need expressly be given: no one can
doubt that, if an elector would nominate and vote only for a
woman to fill the office of mayor or burgess in Parliament, his
vote would be thrown away: there the fact would be notorious,
and every man would be presumed to know the law upon that
fact”. 182
165. Lady Sandhurst appealed unsuccessfully. Lord Coleridge said:
“Where the incapacity is an incapacity of status so annexed by
law to the candidate it requires no proof; the fact of its being an
incapacity to which the law annexes the legal consequence is
known to every person who votes, and the persons who vote
and who are aware of the fact to which incapacity is attached,
180 Beresford-Hope v Sandhurst (1889) 23 QBD 79, 84, 92 (on appeal). 181 Beresford-Hope v Sandhurst (1889) 23 QBD 79, 85. 182 Quoted in Beresford-Hope v Sandhurst (1889) 23 QBD 79, 84–5.
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must in reason be held to be aware of the consequence which
attaches to their voting.” 183
166. Applying this view, Lord Coleridge agreed that votes for Lady
Sandhurst had been thrown away.184 The other Lords agreed.
167. In Cox v Ambrose (1890),185 the elected candidate, Mayor
Ambrose, was disqualified for having a contract with the Council.
Justice Mathew ruled that “No one could fail to see that Ambrose
was under a liability to the council by which he was disqualified …
and the voters threw away their votes. The other candidate must
be declared elected”.186
168. In Fermanagh and South Tyrone Division Case (1955),187 the
elected candidate was serving a 10 years’ sentence for treason-
felony and was thus ineligible for election to Parliament by virtue
of the Forfeiture Act 1870. The High Court of Northern Ireland
seated the petitioner, holding that for votes to be thrown away it
was sufficient to prove only that the elector had notice of the fact
of the disqualification and that it was not necessary to show that
the elector was aware of the legal result that such disqualification
entailed.188
183 Beresford-Hope v Sandhurst (1889) 23 QBD 79, 94. 184 Beresford-Hope v Sandhurst (1889) 23 QBD 79, 95. 185 7 Times Law Reports 59. 186 7 Times Law Reports 59, 60. 187 Noted in 105 Law Journal 594. 188 Noted in 105 Law Journal 594. See also Mid-Ulster Division Case (1955), Times, 8 October 1955, 3, 6.
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169. In re Parliamentary Election for Bristol South East (1961)189
established that a person succeeding to a peerage of the United
Kingdom granted under letters patent is disqualified immediately
on his succession from being a candidate for and from sitting in
the House of Commons.190 The court found that the respondent,
Mr Benn, succeeded to the peerage of the United Kingdom on the
death of his father.191 By reason of that status, Mr Benn was
disqualified from being a Member of the House of Commons and
was accordingly not duly elected or returned.192 Since the electors
knew before they voted that Mr Benn was the eldest surviving son
of his father and had notice of the claim (and also the denial by Mr
Benn) that those facts created disqualification, all votes for Mr
Benn had been thrown away and were null and void, and the
petitioner, Mr St Clair, was duly elected.193 So too, the Press
Release and Press Statement of Mr Walker in Dabdoub v Vaz is of
no moment.
170. The court apparently accepted the petitioner’s submission that:
“Where the successful candidate at an election is disqualified by
his status at the date of the election, then if the electors who
vote for him are unaware of the facts giving rise to his
disqualification at the time they record their votes, there must
be a new election; but if the electors at the time of recording
their votes know that the candidate for whom they vote is
189 [1964] 2 QB 257. 190 In re Parliamentary Election for Bristol South East [1964] 2 QB 257, 259. 191 In re Parliamentary Election for Bristol South East [1964] 2 QB 257, 260, 291. 192 In re Parliamentary Election for Bristol South East [1964] 2 QB 257, 260, 288, 291. 193 In re Parliamentary Election for Bristol South East [1964] 2 QB 257, 260, 301.
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disqualified, or know the facts which in law disqualify him, then
the votes so given are thrown away and are void, with the
result that if, after discharging all such votes for the successful
candidate, it appears that the candidate with the next highest
number of votes has a majority, he is entitled to be declared
elected and returned as member and no new election can take
place.”194
171. As to what constitutes sufficient notice:
“[I]t is enough to cause the votes of those who vote for a
disqualified candidate to be thrown away if they know the facts
which constitute the disqualification and are aware that the
legal consequences of those facts might be to constitute
disqualification, not that they do constitute disqualification.” 195
172. In Bristol, all those who voted for the respondent:
“must have known or be deemed to have known all the facts
giving rise to the respondent’s disqualification and must have
known that it was at least contended that those facts
disqualified him in law. It is irrelevant that they did not know
that those facts amounted to a disqualification in law. Therefore
all the votes given for the respondent are void and the
194 In re Parliamentary Election for Bristol South East [1964] 2 QB 257, 262 (argument for counsel for the petitioner). 195 In re Parliamentary Election for Bristol South East [1964] 2 QB 257, 262–3 (argument for counsel for the petitioner; emphasis added).
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petitioner is entitled to be declared duly elected and returned as
a member for the constituency.”196
VII. Analysis and Application of the “Votes Thrown Away” Rule
173. From the cases cited above, we can see that the “Votes Wasted”
or “Votes Thrown Away” doctrine operates when the following
requirements are satisfied:
Element 1: Incapacitating Facts. The facts incapacitate or
disqualify the candidate from nominating and contesting the
election. They existed prior to and at the time of nomination.
Element 2: Knowledge of Facts. The facts that lead to this
disqualification are “known” by the electorate; but actual
knowledge of the legal consequences of those facts is
unnecessary.
Element 3: “Truth” of facts. The incapacitating facts must be
reasonably established as true to the electorate, but only to the
extent that a voter of ordinary care and intelligence is put on
inquiry that the candidate might be disqualified; whether the
incapacitating facts are reasonably established as true to the
electorate can be shown by several means. Once the electors are
put on inquiry, then they are “bound to satisfy themselves upon
the subject and if it should turn out to be a disqualification
destroying his status as a candidate, they must be held to have
voted for him with knowledge of the fact, and subject to the
consequences of having their votes thrown away”.197
196 In re Parliamentary Election for Bristol South East [1964] 2 QB 257, 263 (argument for counsel for the petitioner). 197 County of Tipperary (1875) 3 O’Malley and Hardcastle 19, 39–40.
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Element 4: Majority of Votes. The candidate affected by this
incapacity receives the highest number of votes.
174. When these elements are satisfied, then the votes for the
candidate with the highest number of votes are taken to have
been wasted or thrown away. Consequently, there is no bye-
election, but instead, the candidate with the second highest
number of votes (that is, the holder of the majority of legal votes)
must be seated.
175. Each of these elements is explained and applied below. When the
elements are applied properly, it becomes clear that votes for
Respondent Vaz were thrown away. The submissions then show
how it is that Chief Justice McCalla has misconstrued these
elements and misapplied them.
A. Element 1: The Facts Must Be Incapacitating Facts
176. Logically, for the Votes Thrown Away principle to apply, the facts
must be the facts that create the candidate’s incapacity from
nominating and contesting the election.
177. In the present case, Counsel for Appellant Dabdoub submits that 3
facts disqualify Vaz:
(i) Respondent Vaz is not qualified to be elected because at the
time of nomination, he was a United States citizen, a status
that Vaz chose to not renounce;
(ii) Respondent Vaz is not qualified to be elected because at the
time of nomination, Vaz was the holder of a United States
passport, by his own act, a document that acknowledges
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Vaz’s duty of allegiance to and protection from the United
States; and
(iii) Respondent Vaz is not qualified to be elected because, by his
own act, he applied for, renewed, and travelled on his United
States for various overseas trips.
178. There is a disagreement about which of these facts creates Vaz’s
disqualification. The Court must resolve this disagreement. It is
submitted that in this case, each and every one of these pre-
existing facts amounts to an acknowledgment of allegiance to the
United States. But even Chief Justice McCalla found that Vaz was
not qualified because he renewed, and travelled on his United
States for various overseas trips. Thus, at the very least, this set of
facts establishes a legal incapacity to be elected.
B. Element 2: The Electors Must “Know” the Incapacitating Facts
179. For the principle to operate, the facts on which the disqualification
is based need to be known by the electorate. The knowledge can
be presumed “from sufficient public notice or notoriety”.198
Sufficient public notice or notoriety can come from several
means.199 For example, there may be a letter-drop, doorknocking,
public displays of posters, radio, television talk shows and media
publicity.200
180. As a matter of law, it is necessary only that the electors know of
the facts creating the disqualification without being required to
198 Peris v Perera (1969) 72 New Law Reports of Ceylon 232, 269. 199 Peris v Perera (1969) 72 New Law Reports of Ceylon 232. 200 Peris v Perera (1969) 72 New Law Reports of Ceylon 232, 250.
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know the legal consequences of those facts.201 That is, the electors
need to know only the “facts grounding” the disqualification.202
181. Courts will therefore assume that voters understand the 2
consequences of the facts that are imposed by common law when
they vote for a disqualified candidate—the votes will be considered
void or thrown away and the candidate with the next highest
number of votes will be taken to be elected.203 This approach both
squares with, and implements, the legal presumption that
ignorance of the law is no excuse or the legal presumption that
everyone is presumed to know the law.204
182. In the present case, there is no disagreement on whether the facts
creating Vaz’s disqualification were of sufficient notoriety. Vaz’s
United States citizenship and his United States passport were
widely known. Rather, the crux of the present case is whether the
content of the notice was sufficiently “clear, definite, and certain”.
C. Element 3: The Incapacitating Facts Are Reasonably Established as True to the Electorate to the Extent that a Voter of Ordinary Care and Intelligence Is Put on Inquiry
183. Electors must come by the facts of disqualification in a way that it
is reasonably clear. It is submitted that in the instant case this was
done, inter alia, by:
(i) The voters were notified and at the very least put on inquiry
by a way of a colour poster entitled “Jamaicans Don’t Waste
201 Parliamentary Election for Bristol South East, In re [1964] 2 QB 257; Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 36. 202 Peiris v Perera (1969) 72 New Law Reports of Ceylon 232, 251, 271 per Weeramanty J. 203 Nedd v Simon (1972) 19 WIR 347.
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Your Vote” published by the People’s National Party and
circulated in the Constituency indicating that a number of
persons, including the Respondent Vaz, had sworn allegiance,
adherence, and obedience to a foreign power or state and
setting out that Section 40(2)(a) of the Constitution indicates
that persons who by their own act pledged allegiance,
obedience, or adherence to a foreign power or state are not
eligible to be elected to the House of Representatives.205
(ii) The Voters were notified and at the very least put on inquiry
by way of the electronic media and radio and in particular a
radio broadcast on the 28 August 2007 wherein it was
reported by Cliff Hughes on Nationwide News that
Respondent Vaz admitted to being a United States citizen and
having a United States passport.206
(iii) The voters were notified and at the very least put on inquiry
by way of a Fixed Date Claim Form Claim No 2007 HCV
03490 which particularized Respondent Vaz’s disqualification
filed by the Appellant against the Respondent on the 30
August 2007 and which the Chief Justice found received
widespread publication in the media.207 The uncontradicted
and unchallenged evidence was that it was widely publicized
in the electronic and print media and discussed on the talk
shows.208
204 See, for example, Wakefield Case (1842) Barron and Austin’s Election Cases 270, 317. 205 Record of Appeal, Vol 1, Fixed Date Claim Form (Election Petition), 42. 206 Record of Appeal, Vol 1, Fixed Date Claim Form (Election Petition), 39, paras 16 and 17. 207 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 40. 208 Record of Appeal, Vol 1, 191, paras 18 and 19.
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(iv) The unchallenged and uncontradicted evidence is that
Respondent Vaz admitted publicly on more than one occasion
that he was a United States citizen and held a United States
passport.209 These admissions by Respondent were sufficient
notice to the voters which at the very least placed them on
inquiry.
(v) The unchallenged and uncontradicted evidence is that the
Appellant conducted extensive house-to-house visits in
almost every polling division with a team of campaigners.
The voters during these visits were advised that the
Respondent Vaz was not qualified by virtue of Section
40(2)(a) to be elected as a Member of the House of
Representatives and is by virtue of his own act under an
acknowledgment of allegiance to a foreign power and if they
voted for him they would be throwing away their votes which
would not be counted; this is sufficient notice to the voters
which, at the very least, put them on inquiry.210
(vi) The unchallenged and uncontradicted evidence is that the
Appellant at public meetings in the constituency during the
campaign period spoke to the fact that the Respondent Vaz
was by virtue of Section 40(2)(a) of the Constitution of
Jamaica not qualified to be elected as a Member of the House
of Representatives and advised the audience on each and
every occasion that because of the said disqualification the
209 Record of Appeal, Vol 1, 190, para 13. 210 Record of Appeal, Vol 1, 190, para 14.
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votes of those who voted for him would be considered
wasted, thrown away, and not counted.211
(vii) The voters were notified or at the very least put on inquiry by
the printed copies of the Notice of Disqualification with Legal
Opinion which the uncontradicted and unchallenged evidence
discloses were widely distributed to the voters throughout the
constituency.212
184. These facts must be established to the extent that they lead to
“the fair inference” of “wilful perverseness”213 in that the electors
vote for the candidate in the face of established facts that indicate
the candidate is unqualified or the electors “wilfully incur the
risk”214 of losing their vote.
185. How can the a court satisfy itself that the incapacitating facts were
reasonably established as true to the electorate to the extent that
a voter of ordinary care and intelligence was put on inquiry that
the candidate might be disqualified? There are several ways the
Court can satisfy itself that the facts were reasonably established
as true to the electorate.
211 Record of Appeal, Vol 1, 191, paras 20 and 21. 212 Record of Appeal, Vol 1, 190–191, paras 16 and 17; 241–384. 213 Halsbury’s Laws of England (4th ed) para [835] quoted in Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 45. 214 Wakefield Case (1842) Barron and Austin’s Election Cases 270, 317.
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1. The law as to “clear definite and certain”
(a) Facts are reasonably established as clear, definite, and certain to the electorate if the facts are obvious or notorious
186. First, facts may be “obviously and notoriously” true215 so that they
have “admitted of no uncertainty”.216 This has some parallel to the
concept in the law of evidence of proof of facts by judicial notice.
Facts that fall into this class usually consist of facts that are not by
their nature normally or reasonably disputable. Facts that are
“obviously and notoriously” true include facts about a person’s—
age, as in Flint;217
occupation, as in the Wakefield Case;218
criminal record, as in Tipperary219 and Fermanagh
and South Tyrone Division Case;220
gender, as in Beresford-Hope v Sandhurst;221
habitancy, as in R v Boscawen;222 and
citizenship, as in Tipperary223 (and the present
case).
215 Peiris v Perera (1969) 72 New Law Reports of Ceylon 232, 259 per Weeramanty J. 216 Peiris v Perera (1969) 72 New Law Reports of Ceylon 232, 251 per Weeramanty J. 217 Noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 500. 218 Wakefield Case (1842) Barron and Austin’s Election Cases 270. 219 County of Tipperary (1875) 3 O’Malley and Hardcastle 19. 220 Noted in 105 Law Journal 594. 221 (1889) 23 QBD 79. 222 (1714) Easter 13 Anne cited in R v Monday (1777) 2 Cowper’s Reports 1224, 1228. 223 County of Tipperary (1875) 3 O’Malley and Hardcastle 19.
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(b) Facts are reasonably established as clear, definite, and certain to the electorate if the facts are unchallenged or uncontradicted
187. Where allegations of facts relating to disqualification are made,
there are 2 obvious possibilities—the facts are contested or they
are not contested.
188. Allegations of facts may be made and remain “unchallenged and
not contradicted”.224 In an election, allegations are likely to be
made in circumstances where a reasonable person would rebut
them if that were possible. In this situation, where it is
uncontradicted or not challenged and admitted it is clear for the
purposes of the Votes Thrown Away principle that the facts are
taken to be true.225
189. It can happen that there is controversy, either genuine or
fabricated, over the facts on which a disqualification of a candidate
might be based or the legal consequences of those facts. What
then is the situation? To the extent that there is a dispute as to the
legal outcome or consequences of the facts, the controversy is of
no legal significance.226 It does not prevent the doctrine from
operating. This is well established by Benn.227 In that case, the
dispute concerned the capacity of Tony Benn to stand for the
House of Commons. This alleged lack of capacity rested on his
being a member of the House of Lords since he was a peer of the
224 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 40. See also Leominster Case (1819) Corbett and Daniell’s Election Cases 1, 13. 225 Since elections involve constant mass communications by candidates to electors and arguments over issues there is reasonable justification for application of the maxim that silence is consent (qui tacet consentire videtur). 226 Re Parliamentary Election for Bristol South East [1964] 2 QB 257.
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realm. However, the salient facts were not disputed—Benn was the
eldest son of a hereditary peer who had died so Benn acceded to
the peerage. Benn argued that he was not a member of the House
of Lords since he had neither applied for nor received a writ of
summons for the House.
(c) Facts are reasonably established as clear, definite, and certain to the electorate if the facts are proved
190. Facts are treated as proved where they are a matter of public
record.228 Examples include Kirkcudbright229 and the Horsham
Second Case,230 where the House of Commons resolved that the
elected candidate was guilty of bribery, and Cockermouth,231
where the elected candidate’s age was proved.
(d) Facts are reasonably established to the electorate as clear, definite, and certain if they are admitted
191. Facts are taken to be true where the party concerned admits them
as true.232 For example, in R v Hawkins,233 the candidate admitted
he had not taken the Holy Sacrament within a year.234
2. The Approach the Chief Justice Ought to Have Taken
192. When the correct rule is applied about whether facts are
reasonably established as true to the electorate, the Court will see
227 Re Parliamentary Elections for Bristol South East [1964] 2 QB 257.
228 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 41.
229 Noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 500. 230 (1848) 1 Powell, Rodwell, and Dew’s Election Cases 240. 231 (1717) 18 Journ 673 noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 499. 232 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 41. 233 (1808) 103 ER 755. 234 R v Hawkins (1808) 103 ER 755, 757.
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that the electors had definite notice of the facts creating
Respondent Vaz’s disqualification.
(a) The electors had definite notice Vaz’s United States citizenship since Vaz’s United States citizenship was notorious and uncontradicted
193. The electors can be taken to know the truth of Vaz’s United States
citizenship because:
(i) Vaz’s United States citizenship are “obvious” facts. If Your
Lordships would allow an adaptation of the words of
Tipperary, “having received due notice that Mr Vaz was an
alien, they [the electors] were bound to satisfy themselves
upon the subject and if it should turn out to be a
disqualification destroying his status as a candidate, they
must be held to have voted him with knowledge of the fact,
and subject to the consequences of having their votes thrown
away.”235
(ii) Vaz’s United States citizenship was unchallenged and
uncontradicted. 236
(iii) Vaz’s United States citizenship was admitted prior and
subsequent to the election. 237
(iv) Vaz’s being under an acknowledgment of allegiance by virtue
of his United States citizenship was therefore established as a
matter of record prior to nomination and was subsequently
proved in a court of law.
235 County of Tipperary (1875) 3 O’Malley and Hardcastle 19, 39–40. 236 Record of Appeal, Vol 1, Page 38–39 Paragraphs 14-18; Pages 61-61, Paragraphs 14–18. 237 Record of Appeal, Vol 1, 39, paras 16 and 17; 61–62, paras 16–18; 190, para 1; 78, paras 4, 9; Record of Appeal, Vol 2, Transcript of Notes of Evidence, 282–283, 289.
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(b) The electors had definite notice of Vaz’s holding a United States passport since Vaz’s holding a United States passport was notorious and uncontradicted
194. The electors can be taken to know the truth of Vaz’s holding a
United States passport because:
(i) Vaz’s holding a United States passport is an “obvious” stated
fact admitted by Vaz prior to election.
(ii) Vaz’s holding a United States passport was unchallenged an
uncontradicted.
(iii) Vaz’s holding a United States passport was subsequently
proved in a court of law.
(iv) Vaz’s being under an acknowledgment of allegiance by his
holding a United States Passport was therefore established as
a matter of record prior to nomination and was subsequently
proved in a court of law.
(c) The electors had definite notice of Vaz’s renewing and travelling on his United States passport since Vaz’s renewing and travelling on his United States passport was notorious and uncontradicted
195. The electors can be taken to know the truth of Vaz’s applying for,
renewing, and travelling on a United States passport because:
(i) Vaz’s applying for, renewing, and travelling on a United
States passport is an “obvious” fact. It is an obvious and
notorious fact, which every citizen–elector must be taken to
know, that a candidate, in Vaz’s case notoriously of around
44 years of age at the time, must have applied for or
renewed a passport “issued to him” (the key fact explicitly
stated in the notice). Where facts are notorious and the issue
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of the respondent candidate’s qualification subject to
widespread public discussion, no notice is needed at all.238
It follows that notices do not need to contain reference to
notorious facts. It is notorious that passports do not last
decades, and that Vaz, as an adult, must have re-applied for
his passport. The Notice did not need to make explicit such
well-known matters: it merely has to “put a person of
ordinary care and intelligence on inquiry”.239 When the voters
knew that Vaz was the holder of a United States passport,
they would have been put on inquiry about whether Vaz
renewed and travelled on that passport particularly since they
must be taken to be aware that in Jamaica the law is that to
obtain or renew a passport one has to make an application
and that passports are not valid for more than 10 years.
(ii) Vaz’s applying for, renewing, and travelling on a United
States passport was unchallenged an uncontradicted. Part of
the Fixed Date Claim form, which Chief Justice McCalla said
received widespread publication in the media, is referred to in
Appellant Dabdoub’s Affidavit. The “Notice to the Defendant”
refers to the full details of the claim contained in Appellant
Dabdoub’s Affidavit.240 The Legal Opinion on the reverse
page of the Notice of Disqualification is a part of the notice to
the electors which specifies the law as to Respondent Vaz’s
disqualification. It is noted the Chief Justice reproduced the
238 Beresford-Hope v Lady Sandhurst (1889) 23 QBD 79; Gosling v Veley (1847) Report of the Judgment of the Court of Queen’s Bench in the Braintree Church-Rate Case 6; Abingdon Case noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 499. 239 Parker’s Law and Conduct of Elections para 5.74; Drinkwater v Deakin (1874) 9 LRCP 626, 642.
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Legal Opinion at Pages 42-44 of her Judgment but omitted
therefrom several lines of the said opinion setting out that
“applying for a passport of a foreign power or state or a
renewal thereof amounts to an acknowledgment of
allegiance, obedience or adherence a foreign power or state
which disqualifies a person from being elected t the House.”
Chief Justice McCalla said that the content of Appellant
Dabdoub’s notice did not state Vaz’s positive acts of renewing
and travelling on Vaz’s United States passport. She failed to
take into account the fact that the Legal Opinion on the back
of the Notice was part and parcel of the Notice. Chief Justice
McCalla therefore erred when she said the notice:
“merely states that Respondent Vaz ‘is a citizen of a
foreign Power or state … and is the holder of a passport
issued to him by the Government of the United States of
America.’ It does not state any act of acknowledgement
by him. Therefore it does not satisfy the legal
requirements of being clear, definite and certain”.241
Regrettably, Chief Justice McCalla did not mention the part of
the Affidavit and did not mention that part of the particularized
Fixed Date Claim Form 2007 HCV 03490 which she found
received widespread publication in the media that states
specifically that Vaz had used the United States passport
extensively. The Affidavit says Vaz:
240 “Notice to the Defendant”, Fixed Date Claim Form 4. 241 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 45.
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“is the holder of a foreign passport namely Passport No
710898440 issued by the Government of the United
States of America and that the First Defendant has
traveled extensively on the said passport utilizing same
to leave and enter Jamaica.”242
The Fixed Date Claim Form at Paragraph 9 states:-
“That the First Defendant (Vaz) is a person who by virtue
of the fact that he has acquired a passport issued to him
by the Government of a foreign Power or State under an
acknowledgment of allegiance obedience or adherence to
a foreign power having used his United States of America
Passport Numbered 710898440 as a means of departing
from and entering Jamaica.”
If these facts were untrue, then one would have expected
Respondent Vaz to try to deny them, given the adverse effects
the facts would have on his right to take his seat. Yet these
facts remained unchallenged and uncontradicted.
(iii) Vaz’s applying for, renewing, and travelling on a United
States passport was admitted.243
(iv) Vaz’s applying for, renewing, and travelling on a United
States passport was subsequently proved in a court of law.244
3. The Causes of Chief Justice McCalla’s Mistakes
196. The Chief Justice found that the Votes Wasted or Votes Thrown
Away did not apply in the present case. The Chief Justice wrongly
242 Paragraph 10. Emphasis added. 243 Record of Appeal, Transcript of Notes of Evidence, 282, 283.
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concluded that “there was no sufficient notice based on facts
which are clear, definite and certain”.245 The following sections
outline the causes of Chief Justice McCalla’s mistakes.
(a) Chief Justice McCalla misinterprets “acknowledgment”
197. Chief Justice McCalla found that notice put out by Dabdoub says
that Vaz is [merely] a citizen and the holder of a passport. It does
not “state any acknowledgment by him” of allegiance.246
Therefore, the requirement of “clear, definite and certain” notice is
not satisfied.247 In other words, the electors lacked sufficient
knowledge of the facts. This finding omits the fact that the Notice
makes reference to Section 40(2)(a) which speaks to his by virtue
of his own act being under an acknowledgment of allegiance,
obedience or adherence to a foreign power or state.
198. As discussed earlier, Chief Justice McCalla is wrongly interpreting
“acknowledgment.” On the correct analysis, a foreign state by its
law may place a person under an acknowledgment of allegiance.
In the case of Respondent Vaz, the acknowledgment consisted of
conferment of United States citizen and issue of a United States
passport. Those key facts were stated clearly in Appellant
Dabdoub’s notice to the electorate. Further, the Chief Justice erred
when she failed to appreciate that by failing to renounce his
citizenship on attaining adulthood Respondent Vaz concurred in,
accepted, and therefore acknowledged his allegiance to the United
244 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 35 245 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 50. 246 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 45. 247 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 45.
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States and was therefore under an acknowledgment of allegiance
by virtue of his own act.
(b) Chief Justice McCalla erred when she failed to understand the distinction between facts giving rise to “status” and “conduct” facts
199. Chief Justice McCalla held that the act of renewing and travelling
on a passport are acts of “conduct.” As such, for them to be
proved they required “adjudication by a court”.248
200. In reaching this conclusion, Chief Justice McCalla discussed249 and
relied on250 Drinkwater v Deakin.251 Drinkwater concerns alleged
bribery by the winning candidate at the time of nomination. The
case’s formal holding is that such misconduct cannot give rise to
an argument that votes were thrown away, even if the losing
candidate posted notices during the campaign alleging bribery.
201. The reason for the holding is that there can be no certainty about
the bribery allegations, or more importantly their legal effect. Until
a court decides the facts and legal consequences of the candidate’s
offence or conduct, then voters cannot be taken to “know” of the
disqualifying offence. Drinkwater involved allegations of conduct
related to campaigning, where voters could not be expected to be
in a position to assess allegations of disqualification through
misconduct and where the candidate’s nomination would not be
null and void; it would be the election that would be held to be null
and void and not the nomination of the candidate. Drinkwater was
248 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 50. 249 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 35–41. 250 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 49.
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clearly a disqualification based on campaign events—
“Disqualification by something occurring during the election is not
sufficient”.252
202. Respondent Vaz’s case is clearly different. Daryl Vaz’s case does
not involve conduct by the winning candidate at the time of
nomination or during the campaign, let alone his electoral conduct
or an electoral offence. Rather, it involves his citizenship and
constitutional status. Although determining this status involves
reference to facts about him, including his actions, these involve
facts and actions many years before, unrelated to electoral
conduct. These facts, which in law established his status, which
status rendered him unqualified to be elected, existed before his
nomination and therefore in the case of Vaz his nomination was
null and void. In the case of Drinkwater, the candidate was
properly nominated and therefore the election was merely
voidable. In the case of Respondent Vaz, his status was that of a
person not qualified to be elected and whose nomination was
therefore null and void and of no legal effect.
203. Chief Justice McCalla fails to appreciate that incapacity based on
pre-existing facts (as in Vaz’s case) is easy to establish compared
to incapacity based on campaign events. No question of
disqualification is fact-free. Even a finding that a baby is
disqualified from nominating would involve establishing his date of
birth. The Australian case of Re Wood253 makes sense of
251 Drinkwater v Deakin (1874) 9 LRCP 626. 252 Drinkwater v Deakin (1874) 9 LRCP 626, 631 (argument of counsel for the Respondent). 253 Re Wood (1988) 62 ALJR 328.
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Drinkwater v Deakin in a way that Chief Justice McCalla does not.
Re Wood involves, like Vaz’s case, a constitutional disqualification
based on foreign allegiance. It is a joint opinion of the Full High
Court of Australia. It quotes Justice Brett’s judgment in Drinkwater
v Deakin:
“There is a manifest distinction between an offence avoiding an
election and an incapacity. If a man is incapacitated, though at
the election in question neither he nor any elector is guilty of a
fault, the election is void.”254
204. In Re Wood, the High Court of Australia explained that a
constitutional disqualification such as foreign allegiance was such
that “Th[e] incapacity does not flow from the making of a judicial
declaration that [the candidate] lacks the requisite
qualifications”.255 The Court thereby distinguished an election that
was “void” for foreign allegiance disqualification, from an election
merely “voidable” for reason of a candidate engaging in
“disqualifying conduct; for example, bribery of electors”. That is
the distinction Justice Brett was making in Drinkwater v Deakin.
205. Similarly, in the election petition case of County of Tipperary,256
Justice Lawson in the Court of Common Pleas said:
“once we arrive at the conclusion that there were these …
disqualifications and notice to the electors it necessarily follows
that the other candidate must be declared duly elected.” 257
254 Drinkwater v Deakin (1874) 9 LRCP 626, 644. 255 Re Wood (1988) 62 ALJR 328, 332. 256 (1875) 3 O’Malley and Hardcastle 19. 257 (1875) 3 O’Malley and Hardcastle 19, 45. Similarly, see Justice Morris at pages 46–7.
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206. Tipperary involves multiple allegations of disqualification, in
particular of felony and alienage. It concerns an Irish candidate
who had fled Ireland decades earlier on a felony conviction and
had become a naturalized American. The Court of Common Pleas
was not at all concerned that the petitioner’s case in Tipperary
necessarily involved establishing facts, both positive and
negative—the positive fact of the candidate alienating himself by
becoming a naturalized American many years earlier, and the
negative fact of his having not re-established his British allegiance.
Even adopting the unnecessarily strict status–conduct distinction
introduced by counsel for Respondent Vaz, these facts in Tipperary
were “conduct” facts establishing the legal incapacity. The
Tipperary facts were harder to establish than the facts relating to
Respondent Vaz, yet the Court of Common Pleas awarded the seat
to the petitioner in Tipperary.
207. The better distinction, as Drinkwater and Tipperary show, is not
between “conduct” disqualification and some mythical pure
“status” disqualification, with the former being shrouded in doubt
until a court rules, and the latter being blindingly obvious. All
disqualifications rest on proof of facts. Rather, the distinction
drawn in Drinkwater and Tipperary is between incapacities based
on candidate offence or misconduct around the time of nomination
and the campaign, which are inherently uncertain until a judicial
ruling by an election court; and qualification to nominate
dependent on pre-existing matters such as gender, prior felony,
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date of birth, or citizenship of a foreign power or State (as in Vaz’s
case), which are not so uncertain and not capable only of
resolution by an election court.
208. This point is recognised clearly in Re Wood. Like Tipperary, it is
directly on point as it involved alienage. Chief Justice McCalla fell
into error by misconstruing Drinkwater (a case on its facts about
misconduct, namely alleged bribery at the time of nomination, and
not about a pre-existing status) and further by not considering
Tipperary or Re Wood.
209. Where does this leave the distinction between status and conduct?
With respect, Chief Justice McCalla makes a legal error. There is no
rule of law that says that facts can be classified as “conduct” and
by virtue of this can be proved only be adjudication by a court. As
outlined earlier, the correct rule about the requirement for proof of
facts is much simpler. Electors must come by the facts concerning
disqualification in such a way that it is reasonably clear that they
are true.
210. There are several ways the Court can satisfy itself that the facts
were reasonably established as true to the electorate. The facts
may be obvious or notorious, or they may be proved facts, or
unchallenged or admitted facts. In the present case, the
incapacitating facts about Respondent Vaz were matters of public
record. The facts about Vaz’s having renewed and travelled on his
United States passport were obvious and notorious once the
electors knew that Vaz was the holder of a United States passport.
The facts about Vaz’s United States citizenship and his holding a
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United States passport were uncontradicted during the campaign
and subsequently proved in a court of law.
211. Given the adverse effects the facts have on his right to sit in the
House of Representatives if successful at an election, one would
have expected that Respondent Vaz would have denied these facts
which were widely publicised by Appellant Dabdoub in the heat of
an electoral campaign. This is enough for a court to conclude that
the facts were sufficiently established for the purpose of the votes
wasted or votes thrown away rule.
(c) The dispute over Mr Vaz’s disqualification is no bar to votes being thrown away
(i) The press releases did not dispute the underlying facts
212. According to the finding of Chief Justice McCalla, the facts were
also in dispute because of the Press Statement and Press Release
put out by the Director of Elections. This meant that the pertinent
facts were not “clear, definite and certain” so as to allow
invocation of the Votes Thrown Away doctrine.258
213. But nothing in either the Press Statement or the Press Release
raised a dispute about the facts that matter. In this case, the facts
are that Respondent Vaz was a United States Citizen and the
holder of a United States passport. No attempt was made in the
Press Statement or the Press Release to raise a dispute about
those facts. It was therefore a contradiction and error of law for
Chief Justice McCalla to say that:
258 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 50.
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“having regard to the statement and press release issued by Mr
Walker … there was no sufficient notice based on facts which
are clear, definite and certain, to the knowledge of the
voters…”259
214. A similar situation occurred in Re Parliamentary Elections for Bristol
South East.260 In that case, the dispute concerned the capacity of
Tony Benn to stand for the House of Commons. This alleged lack
of capacity, which rested on his being a member of the House of
Lords since he was a peer of the realm. However, the salient facts
were not disputed—Benn was the eldest son of a hereditary peer
who had died so Benn acceded to the peerage.
215. During the campaign, notices alleged that Benn was not eligible to
be elected because of his membership of the House of Lords. Benn
issued counter-notices during the campaign denying that his right
to sit in the Lords and hence denying that he was disqualified.
(Benn reasoned in particular that he had neither applied for nor
received a writ of summons to the House of Lords—a mixed
allegation of fact (no writ of summons) and law (that the
consequence of that was that he lacked any right to sit in the
Lords)). Justices Gorman and McNair held that Benn was
disqualified, despite Benn’s counter-notices that sought to muddy
the minds of electors on the facts and legal consequences of his
qualification to nominate.
216. Although one fact in Benn’s case was fairly notorious in the
electorate (namely his noble birth and the death of his father), the
259 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 50.
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mixed fact–law controversy in Benn’s case was considerably more
legalistic and obscure than any controversy in Vaz’s case.
Nonetheless, the votes for Benn were held to have been thrown
away.
217. In the Tavistock Borough Case,261 the petitioner, Mr Phillimore,
questioned the qualification by estate of the candidate, Mr Carter.
In response, Mr Carter posted this notice to the electorate:
“Mr Phillimore’s Last Effort—Mr Carter’s qualification having
been questioned by Mr Phillimore, Mr Carter positively assures
the electors that his qualification was regularly deposited in the
Crown Office … and is ready to be exhibited by any one who
has a right to demand it.”262
218. The parties disagreed about the value of the several items that
went to make up Carter’s qualification by estate, the petition
asserting that Carter’s qualification was insufficient in point of
value.263 Despite the candidate’s counter-notice, the Committee
found that Carter was disqualified and the votes cast for Carter
had been thrown away.264
219. In the Southwark Case,265 the House of Commons found Mr
Thellusson ineligible for election and seated the petitioner Mr
Tierney in Thellusson’s place. The votes for Thellusson were
260 Parliamentary Election for Bristol South East, In re [1964] 2 QB 257 261 (1853) 2 Powell, Rodwell, and Dew’s Election Cases 5. 262 Tavistock Borough Case (1853) 2 Powell, Rodwell, and Dew’s Election Cases 5, 6. 263 Tavistock Borough Case (1853) 2 Powell, Rodwell, and Dew’s Election Cases 5, 11. 264 Tavistock Borough Case (1853) 2 Powell, Rodwell, and Dew’s Election Cases 5, 13. 265 Cited in Wakefield Case (1842) Barron and Austin’s Election Cases 270, 318.
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thrown away “notwithstanding the publication of the opinion of
counsel that he [the candidate] was not ineligible”266 and
notwithstanding that during the election:
“The returning officer said he would receive the votes tendered
for either candidate, that he had consulted counsel on the
question of Mr Thellusson’s eligibility, and that they were of the
opinion he was eligible.”267
(ii) The Director of Elections’ press releases were legally confused
and beyond his power or authority
220. Moreover, Chief Justice McCalla’s obligation was to apply the law
relating to nominations, not to give any weight to misleading
interventions, even if made by electoral officials.
221. The Director of Elections, Danville Walker, admitted that he had
not sought to obtain legal advice from the Attorney-General’s
Department.268
D. Element 4: The Affected Candidate Must Have Won the Majority of Votes
222. Obviously, the principle of Votes Wasted or Votes Thrown Away
arises only if the candidate affected by this incapacity receives the
highest number of votes. If they do not win the vote count, their
incapacity is irrelevant to the result.
223. In the present case, Respondent Vaz received the highest number
of ballots cast; the ballots cast for him were not good votes and
cannot be counted. Appellant Dabdoub received the majority of
266 Cited in Wakefield Case (1842) Barron and Austin’s Election Cases 270, 318. 267 Noted in Radnor Case (1803) 1 Peckwell’s Election Cases 494, 500.
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legal votes. Thus Appellant Dabdoub must be returned as the
Member of West Portland.
COSTS
VIII. The Election Petitions Act
224. The award and taxation of costs in Election Petitions are to be
made pursuant to Section 28 of the Election Petitions Act, which
provides as follows:
28. All costs and charges and expenses of and incidental
to the presentation of a petition and to the proceedings consequent thereon, with the exception of such costs, charges and expenses, as are by this Act otherwise provided for, shall be defrayed by the parties to the petition in such manner and in such proportions as the Court or Judge may determine, regard being had to the disallowance of any costs, charges or expenses which may, in the opinion of the Court or Judge, have been caused by vexatious conduct, unfounded allegations or unfounded objections, on the part either of the petitioner or the respondent, and regard being had to the discouragement of any needless expense by throwing the burden of defraying the same on the parties by whom it has been caused, whether such parties are or are not on the whole successful. And the Court or Judge shall give judgment for such costs in accordance with such determination as aforesaid. Such costs shall be taxed by the proper officer of the Supreme Court according to the same principles as costs between solicitor and client are taxed in an equity suit in the Supreme Court.
225. Although Section 24 (3) of the said Act states that:-
24 (3) An election petition shall be deemed to be a proceeding in the Supreme Court and, subject to the provisions of this Act and to any directions given by the Chief Justice,
268 Record of Appeal Vol 2, 156–157.
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the provisions of the Judicature (Civil Procedure Code) Law and the rules of court shall, so far as practicable, apply to election petitions.
It is submitted that the Civil Procedure Rules 2002 do not apply in
relation to the award of costs, in this instant case, as the Rules
cannot over-ride the express provisions of the Election Petitions
Act. A reading of Section 24 (3) supports this view as it makes it
quite clear that the Rules apply only subject to the provisions of
the Election Petitions Act and the Act deals specifically with how
costs are to be awarded and determined.
226. It is clear that Section 28 gives the Court or Judge the discretion to
determine how the costs of the election petition should be
defrayed. That discretion is not open-ended as regard must be
had to the disallowance of any costs, charges or expenses which
may, in the opinion of the court or judge have been caused by:
(a) Vexatious conduct;
(b) Unfounded allegations; or
(c) Unfounded objections.
IX. Chronology of Facts
227. A Fixed Date Claim Form 2007 HCV 03490 was filed by Appellant
Dabdoub on the 30 August 2007 claiming, inter alia, that the
nomination of the First Defendant (Vaz) is invalid, null and void
and of no legal effect and an Order that the 2nd Defendant
(Carlton Harris) the Returning Officer for the Constituency of
Western Portland do declare the Claimant (Dabdoub) as the duly
elected Member of the House of Representatives for the said
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Constituency.269The Claim came on for hearing on the 14
September 2007 and was adjourned to the 31 October 2007
before the Chief Justice. The 2nd Defendant was served and the
Director of State Proceedings entered an Acknowledgment of
Service on his behalf.
228. The election was held on 3 September 2007 and on the 1 October
2007 the Appellant filed a Fixed Date Claim Form (Election
Petition) 2007 HCV 03921 which came on for hearing on the 31
October 2007 along with the Fixed Date Claim Form 2007 HCV
03490 before the Chief Justice. The 2nd Respondent (Carlton
Harris) was not served this election petition Claim No 2007 HCV
03921 and did not enter an acknowledgment of service.
229. Both Claims came on for hearing on 31 October 2007 and 1
November 2007 and at the hearing on 31 October 2007 Mrs Nicole
Foster-Pusey indicated to the Chief Justice that in many of these
cases the Returning Officer would not necessarily have to
participate. She stated that the Attorney-General had not been
served and they would only have to file Defence if it270 was the
conduct of the Returning Officer that was being challenged.
Attorney for the Appellant/Petitioner Dabdoub indicated that the
Appellant intended to discontinue against them unless the Chief
Justice wished them to remain and participate in the case. The
Chief Justice stated she would like the assistance of the Attorney-
269 Supplemental Record of Appeal, Fixed Date Claim Form, dated 30 August 2007. 270 Supplemental Record of Appeal, Affidavit of Winston Taylor, 3 November 2008; Exhibit 2, Affidavit of Winston Taylor, 29 April 2008, para 5.
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General’s Department and that she expected submissions from
them.271
230. At the said Case Management Conference, the 1st Respondent
requested a trial date in the following year and gave as his
reasons that in view of Paragraphs 23 and 24 of the Fixed Date
Claim Form he would need time to prepare his Defence and obtain
witnesses. It was agreed between the parties that the
Appellant/Petitioner would not pursue that aspect of the Claim and
indicated to the Chief Justice.272 At the trial, the
Appellant/Petitioner’ Attorney-at-Law did not address the court on
that aspect of the Claim nor call any witnesses to substantiate it.
231. The Appellant/Petitioner on 29 April 2008 filed a Notice of
Application to vary the Order as to Costs contained in the
Judgment. On 14 May 2008, Appeal No 45 of 2008 was filed
against, inter alia, the order in relation to costs.
232. The Notice of Application came on for hearing on 20 May 2008
before the Chief Justice. Appearing for the Appellant/Petitioner
were Mr Gayle Nelson, Mr Jalil Dabdoub, and Mr Winston Taylor
and for the Director of State Proceedings Mrs Nicole Foster-Pusey.
The 1st Respondent was not present nor represented.
233. At the hearing on 20 May 2008, the Chief Justice expressed the
view that she was functus officio in view of the fact that an Appeal
had already been filed in the Court of Appeal a few days before.
The Chief Justice confirmed that she had previously indicated that
271 Supplemental Record of Appeal, Affidavit of Winston Taylor, 3 November 2008; Exhibit 2, Affidavit of Winston Taylor, 29 April 2008, paras 6 and 7.
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Mrs Nicole Foster-Pusey should remain in the matter as a neutral
party.273
234. Mrs Nicole Foster-Pusey then indicated that she for the 2nd and 3rd
Respondents would not be pursuing the award of costs. Mr
Nelson stated that he wished to have that reflected as part of a
Court Order and the Honourable Chief Justice stated that she did
not think that was necessary as her order was that costs be taxed
if not agreed and there was now agreement between the parties
that the order for costs would not be pursued so she did not see
why she should be brought into it. Mrs Nicole Foster-Pusey then
assured Mr Nelson that she would put her undertaking in respect
to the 2nd and 3rd respondents not pursuing the costs in writing by
the following day.274
235. On 21 May 2008, Mrs Foster-Pusey wrote confirming her said
undertaking.275 On 5 June 2008, Mrs Foster-Pusey wrote
withdrawing the said undertaking given.276 By letter dated 12 June
2008, the Appellant’s Attorneys-at-Law wrote to Mrs Foster-Pusey
indicating that any withdrawal277 of the undertaking is to be
considered a serious breach of ethics. On 16 June 2008, Mrs
Foster-Pusey wrote to the Appellant’s Attorneys-at-Law that it was
always her understanding that she had the authority to give such
an undertaking and that over the years she has made many
272 Record of Appeal, Vol 1, Defence of 1st Respondent, 76, para 80. 273 Supplemental Record of Appeal, Affidavit of Winston Taylor, 3 November 2008. 274 Supplemental Record of Appeal, Affidavit of Winston Taylor, 3 November 2008. 275 Supplemental Record of Appeal, Affidavit of Winston Taylor, 3 November 2008. 276 Supplemental Record of Appeal, Affidavit of Winston Taylor, 3 November 2008, Exhibit 3. 277Supplemental Record of Appeal, Affidavit of Winston Taylor, 3 November 2008, Exhibit 4.
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decisions in her capacity as the Attorney with conduct of the
matter, Team Leader in Chambers and ultimately since 2002 and
various periods thereafter as Director of Litigation.278
236. The substantive issue before the Court was the question of the
qualification of the Respondent Vaz to be elected as a member of
the House of Representatives. The remedy sought by the
Petitioner/Appellant is that he be returned as the Member of
Parliament as the voters had knowledge of the facts of the
disqualification of Respondent Vaz and their votes were therefore
wasted or thrown away.
237. The Appellant was successful on the substantive issue before the
Court, which found that pursuant to the provisions of section
40(2)(a) of the Constitution of Jamaica, the Respondent Vaz was
not qualified to be elected and his nomination was null and void
and of no legal effect. The remedy the court decided was that a
bye-election be held to fill the vacancy.279
X. Exercise of Discretion
238. The Appellant submits that in the exercise of her discretion in an
award of costs the Learned Chief Justice should have regard to the
specific provisions of Section 28 of the Election Petitions Act. The
well-known principle which applies also to Election Petitions is that
“costs follow the event”. In other words, the successful party
should be awarded costs unless she finds that there was vexatious
conduct, unfounded allegations, or unfounded objections to an
extent that prolonged the trial unnecessarily.
278 Supplemental Record of Appeal, Affidavit of Winston Taylor, 3 November 2008, Exhibit 5.
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239. No reasons have been given by the Learned Chief Justice nor has
she set the factors, if any, which she took into consideration in the
exercise of her discretion.
240. The discretion given the Court under the Election Petitions Act must
be judicially exercised. It is submitted that it must, like any other
discretion it has to exercise, do so judicially and ought not to
exercise it against the successful party except for some reason
connected with the case and which is in accordance with good
sense and justice.
241. In order to exercise its discretion judicially, the Court will have to
take into account all the facts, the parties’ conduct in the litigation,
and the other factors set out in the Election Petitions Act. It is
important also for the Court to give reasons for the exercise of its
discretion particularly when departing from the general principle.
Unless this is done, the parties will not know the reasons for the
departure and are left to speculate. Without proper reasons when
costs are not awarded to a successful party or costs are awarded
against a successful party, the inference is that the non award or
award against the successful party is a punitive measure. This only
serves to undermine confidence in the judiciary. Unless cogent
reasons are given that make it clear that no extraneous matter has
been considered and only relevant factors taken into account then
there is justification to conclude that the award is born out of
capriciousness or a desire to punish the successful party.
242. The Court should allow the parties to bring to its attention
circumstances which ought to be considered in the award of costs,
279 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008).
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particularly when the judge contemplates exercising that discretion
to depart from the general rule that the successful party be
awarded costs. Had the Learned Judge done so in this case it
would have allowed the parties to bring to her attention
circumstances which she ought to have taken into account.
243. On the facts and circumstances of the case at bar, it is clear that
the Judge could not have considered the fact that it was as a result
of her invitation that the 2nd and 3rd Respondents remained in the
case even though they were not served with the Fixed Date Claim
Form (Election Petition) and they did not enter an acknowledgment
of service.
244. The Chief Justice does not appear to have considered the fact that
the 2nd and 3rd respondents could not have had audience before
the Court except at the Court’s invitation as no acknowledgment of
service was filed and served by the 2nd and 3rd Respondents.
245. The Judgment is clear indication of the fact that the Chief Justice
certainly could not have taken into consideration the fact that in
the interests of having the petition disposed of within the shortest
possible time the Appellant/Petitioner agreed not to pursue and
present any evidence in respect of the allegation in Paragraphs 23
and 24 of the particulars of the Fixed Date Claim Form (Election
Petition). She also apparently failed to take into account that
Paragraph 30 of the Defence of the First Respondent which offered
no defence in relation to the allegations a Paragraphs 23 and 24 of
the Fixed Date Claim Form (Election Petition) as a result of the said
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position taken by the Appellant/Petitioner.280 It is submitted that
had she taken these matters into account she would have
mentioned them in her judgment.
246. It is further submitted that the conduct in litigation of the
Appellant/Petitioner was not vexatious, there were no unfounded
allegations or unfounded objections and the only needless expense
incurred was as a result of the Respondent Vaz failing to respond
to the Notice to Admit dated 18 October 2008 filed by the
Appellant/Petitioner and served on the 1st Respondent. The said
Notice required, inter alia, for the 1st Respondent to admit to the
following facts:
(a) That between 29 August 2007 and the 3rd day of
September 2007 a document entitled “Notice of
Disqualification and a Legal Opinion”, relating to the 1st
Respondent’s qualification for election, a copy of which is
attached to the Claim Form and Particulars of Claim filed
herein was distributed throughout the constituency.
(b) That the question of the 1st Respondent being a citizen of
the United States was the subject of much discussion on
radio, television and in the constituency.
(c) The 1st Respondent completed and submitted to the
Embassy of the United States of America in Kingston,
Jamaica, an application for a United States of America
passport.
and the 1st Respondent failed to admit to the said facts as a result
whereby the Appellant/Petitioner was put to needless expense in
proving same at trial.
280 Record of Appeal, Vol 1, Defence of 1st Respondent, 76, para 30.
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247. That Section 28 of the Election Petitions Act specifically provides
that the court or judge must have regard to the needless expense
by throwing the burden of defraying same on the parties by whom
it has been caused, whether such parties are or are not on the
whole successful.
248. The Appellant submits further that it is the 1st Respondent’s breach
of Section 40(2)(a) of the Constitution of Jamaica in nominating
with the knowledge that he is a citizen of the United States of
America holding a United States of America passport by virtue of
which he is, by virtue of his own act, under an acknowledgment of
allegiance that has given rise to the petition being filed.
249. The 1st Respondent sought to raise the defence that he was not
aware that he was under an acknowledgment of allegiance but with
respect such a Defence is merely a puff Defence in that every
citizen is expected to know the law and even if he was not aware of
the allegiance he owed, it is submitted that ignorance of the law is
no excuse.
250. In the Parliamentary Election for Bristol South East case, the
question of costs was gone into and the Judge heard submissions
from the parties. Counsel Sir Andrew Clark QC read the relevant
section of the English Act, which is in very similar terms as our
Section 28. The Bristol South East case involved a lack of
qualification to be elected about which notice was given to the
electorate and a counter-notice issued refuting the lack of
qualification. The instant case involved a lack of qualification about
which notice was also given and a Press Release and Press
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Statement alleging that all candidates were properly nominated
was issued by the Director of Elections.
251. In the instant case, the Learned Chief Justice did not invite nor give
any opportunity for submissions in relation to costs. She merely
came with a written Judgment in which the decision as to costs had
already been made. The similarities between the Bristol South East
and the instant case are readily apparent. In the Bristol South East
case, their Lordships accepted Sir Andrew Clark QC’s submissions
that there was no possible ground for departing from the normal
rule that a successful plaintiff or petitioner is entitled to his costs
and ordered that the respondent do pay the petitioner’s costs and
no order made for costs of the Director of Public Prosecutions.281
XI. Conclusion: Appellant Dabdoub Has Shown the Voters Knew (or Can be Taken to Have Known) the Acts, Positive or Negative,
Creating Vaz’s Disqualification
252. The notice put out by Appellant Dabdoub clearly states the first
basis on which Vaz, by his own act, is under acknowledgment of
allegiance to a foreign power. It states correctly that he is a United
States citizen. All citizens owe and are under an acknowledgment
of allegiance to their country of citizenship. The mere fact of a
failure to renounce a citizenship which is capable of being
renounced but not renounced is an acknowledgment of allegiance.
253. The notice put out by Appellant Dabdoub clearly states the second
basis on which Vaz, by his own act, is under acknowledgment of
allegiance to a foreign power. It states correctly that he is the
281 In re Parliamentary Election for Bristol South East [1964] 2 QB 257, 301–302.
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holder of a United States passport. Passports are only issued to
citizens and nationals of a country and are proof of allegiance to
that country.
254. As to the third basis on which Vaz, by his own act, is under
acknowledgment of allegiance to a foreign power—his use and
renewal of his United States passport—the voters can be presumed
to know that a middle-aged man must have applied for or renewed
a passport issued to him. These are pre-existing facts that
establish Vaz’s recognition and acceptance of his United States
citizenship and of his being under an acknowledgment of
allegiance to the United States.
255. As to the finding that the act of renewing and travelling on a
passport are acts of “conduct” that require “adjudication by a
court”,282 the correct view is that the distinction between status
and conduct is merely a shorthand or a marker for facts that may
be reasonably true to the electorate.
256. The acts of renewing and travelling on a passport are pre-existing
facts that fall within the Votes Wasted of Votes Thrown Away rule.
These acts of applying for, renewing, and travelling on a passport
are acts that confirm the acceptance of a citizenship status which
status places the citizen under an acknowledgment of allegiance.
257. As for the finding that the facts relating to disqualification were not
settled and established but in dispute because of the Director of
Election’s notice, which meant that they were not “clear, definite
and certain” so as to allow invocation of the votes thrown away
282 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 25–41, 49.
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doctrine, the Press Statement and Press Release in truth did not in
any way traverse the facts on which disqualification was based.
Thus they did not put these facts in issue. These facts were
never in dispute either before or after nomination. There
was nothing in the Press Release that could cause “confusion” in
the mind of the voter. Moreover, other cases have involved Notices
that sought to muddy the minds of electors, yet the court still
decided in those cases that votes were thrown away.283
258. The electorate need not know the legal consequences of the facts.
Case law makes that quite clear definite and certain. The facts
need only be brought to the attention of the electorate.
259. There is nothing unclear about the statement that Respondent Vaz
“is a citizen of a foreign power or state namely the United States of
America”.
260. There is nothing unclear about the statement that Respondent Vaz
“is the holder of a passport issued to him by the Government of
the United States of America”.
261. There is nothing unclear about the statement that Respondent Vaz
“travelled extensively on the said passport utilizing same to leave
and enter Jamaica”.
262. There is nothing unclear about the statement that “the said
Respondent Vaz is not, by virtue of the provisions of Section
40(2)(a) of the Constitution of Jamaica, qualified to be elected a
Member of Parliament for the constituency of Western Portland.”
283 For example, Tavistock Borough Case (1853) 2 Powell, Rodwell, and Dew’s Election Cases 5; Southwark Case cited in Wakefield Case (1842) Barron and Austin’s Election Cases 270.
107
263. All the facts set out in the preceding four paragraphs are
facts which were never in dispute either before or after
nomination.
264. Thus, even if this Court is prepared to accept that the facts
creating Vaz’s disqualification are the positive acts of using,
applying for, and renewing his United States passport, then the
electorate knew, or can be taken to have known, those positive
acts. As a result, the votes for Respondent Vaz have been thrown
away and Appellant Dabdoub is entitled to be returned as the
Member of West Portland.
265. In matters involving elections, courts are very cautious about any
interference which trespasses upon the democratic process. In the
present case, however, Mr Vaz presented himself to the electorate
as being qualified to be elected to the House of Representatives.
He signed a nomination form which required those nominating him
to certify that he is pursuant to Section 39 of the Constitution of
Jamaica qualified to be elected as a member of the House of
Representatives. He thereby confirmed and presented himself to
the electorate as a person qualified to be elected pursuant to
Section 39 of the Constitution of Jamaica. In so doing ,Respondent
Vaz deceived the electorate and undermined the democratic
process.
266. In the present case, to rule a bye-election as a remedy would be to
permit the electorate to have been deceived by Mr Vaz’s holding
himself out as a person qualified to be elected. This will only serve
to further undermine the democratic process, especially since the
evidence in the Court below established the fact that his
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disqualification was not only notorious but that the notice of
disqualification issued by the Petitioner was more than adequately
circulated to the electorate.
267. My Lords, I would be remiss in my duty to the Appellant, to the
constituents of West Portland, the country and the Court were I to
close this submission without reference to an article written in the
JamBar News publication of the Jamaica Bar Association by Dr
Lloyd Barnet OJ, a respected Attorney-at-Law and a Ms Stacey-Ann
Soltau-Robinson. Mi Lords, no matter how generous one may wish
to be in assessing the article, on a purely legal basis, one cannot
stretch one’s own credibility to regard it as a scholarly piece of
work. The arguments raised by Dr Barnett and Ms Stacey-Ann
Soltau-Robinson as to why the Votes Thrown Away is
“mechanically unrelated to Jamaica” has to do with their perceived
view of the intellectual capacity of the Jamaican voter to
comprehend that if you vote for a man who is disqualified your
vote is not countable, it will be rejected. This concept is not
difficult for a Jamaican voter who knows that votes can be rejected
and not counted for a variety of reasons. It is no assumption of a
voter being wilful and perverse who with knowledge of the
disqualification of a candidate nonetheless votes for him. There is
body of case law which takes the position that if a voter with
knowledge that a person is disqualified votes for him he is being
“wilful and perverse”. It is not an assumption.
268. The truth is that one would scarcely expect that an Attorney-at-
Law of so many years standing at the bar who has been the
Chairman of the General Legal Council and also the Chairman of
the Disciplinary Committee could have written such an article and
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had it published at a time when it is difficult to escape the
conclusion that it was written with the very intention of influencing
the Court to decide this appeal in a particular way. Whilst the
Court is unlikely to be influenced by this article, it is important in
the interest of justice being seen to be done that the Court should
make the strongest condemnation of such conduct in order to
prevent the high esteem in which our Courts are held being
severely compromised by repeated breaches such as this, the
precedent having been set by such a senior practitioner.
269. The Court is urged to find that:
(1) Respondent Vaz was not qualified to be elected to
the House of Representatives not only by virtue of
the fact that he applied for and renewed and
travelled on his United States Passport but also
that he was a citizen of the United States under an
acknowledgment of allegiance to that country by
virtue of his own decision not to renounce the said
citizenship
(2) that the electorate were aware by widespread
publicity in the constituency, by a notice of
disqualification and the legal opinion on the back
and by the admission of the Respondent himself,
of the facts giving rise to the disqualification and
that
(3) the votes cast for Respondent Vaz were wasted or
thrown away and (4) Appellant Dabdoub being the
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candidate with the majority of lawful votes was
the duly elected to the House of Representatives
for the constituency.
270. The Court is urged therefore to allow this appeal and make orders
in terms of the Notice and Grounds of Appeal including an order
granting costs to the petitioner against the first Respondent to be
taxed if not agreed and that there be no order as to costs as
between the Petitioner and the 2nd and 3rd Respondents.
DATED THE 17TH. DAY OF NOVEMBER 2008
GAYLE A. V. NELSON IN CONSULTATION WITH A.J. DABDOUB
GAYLE NELSON & COMPANY
…………………………………….………. APPELLANT’S ATTORNEYS-AT-LAW
FILED by GAYLE NELSON & COMPANY, Attorneys-at-Law of 4 Eureka Crescent (Entrance on Eureka Road), and Kingston 5, Tel : 906-8277-8; Fax : 906-8279 for and on behalf of the APPELLANT/PETITIONER herein whose address for service is that of his said Attorneys-at-Law.
