The following guidance is issued on Dual Citizenship and disqualification under the Constitution sent to us by the Elections office.
Section 49(1)(a) of the Constitution provides as follows –
“No person shall be qualified to be an elected member of the House of Assembly who, on the date of hi or her nomination for election –
(a) Is, by virtue of his or her own act, under any acknowledgement of allegiance, obedience or adherence to any foreign power or state; …”
It is a matter for any prospective candidate to be satisfied as to his or her qualification for nomination to be an elected member of the House of Assembly and that he or she is not otherwise disqualified in accordance with the provisions of the Constitution and the Elections Ordinance. A process for this is provided in the Constitution and the Elections Ordinance.
In response to queries in the run up to the general elections in 2012, the then Attorney General expressed a view as to whether a person with dual citizenship was qualified to be an elected member of the House of Assembly if he or she had applied for a passport from a foreign country.
In October 2012, the then Attorney General expressed the following view which was widely publicized in the local newspapers and you issued guidance accordingly –
“What s.49 means is that a person with dual citizenship cannot be a member of the House of Assembly if he or she has applied for a passport from the country outside the TCI of which he or she is also a citizen. Applying for a passport would be an act by that person that acknowledged “allegiance, obedience or adherence” to a foreign power or state.
If that person’s parents had obtained a passport from the foreign state for the person while he/she was still a minor, there would be no disqualification unless the minor had, once he/she became an adult, renewed that passport.”
The then Attorney General expressed that view in heavy reliance on the UK case of Joyce v DPP [1946] AC 347. Thereafter, some prospective candidates renounced their citizenship in foreign states as a precaution rather than being challenged as not being qualified following their nominations.
The key point in the Joyce case was that Joyce obtained a British passport by falsely stating he was a British subject. He was not. But having obtained a British passport it was held by the court in the UK that he owed allegiance to the British Crown while that passport was valid, notwithstanding that he had no British nationality. Thus, the possession of that passport was the only basis for his allegiance. There were public policy considerations at play in that case relevant to the law of treason. It is arguable that Joyce would therefore be good authority to disqualify a person who did not have the nationality of a foreign State but applied for and obtained a passport from that State.
It is arguable that the Joyce case is not good authority for disqualifying a person who has the nationality of a foreign State by operation of the law of that State on the basis of their birth in that foreign state (and thus not “by virtue of his own act”) and who obtains a passport as evidence of that nationality. The allegiance which such a person owes to the foreign State derives from his nationality, the possession of a passport evidencing that nationality being merely incidental. The application for a passport cannot add a new “allegiance”, because the allegiance already exists.
Since then, this issue was considered in the Supreme Court of the Turks and Caicos Islands by Ramsay Hale CJ in the case of Selver v Smith, Missick and Others (Petition No. CL 237/12, written judgment delivered on 9th January 2013) where she decided that the acquisition of foreign citizenship of the United States by naturalization (as opposed to by birth and which had not been renounced by nomination day) is a disqualification. It also appears that the Chief Justice accepted the proposition from a US expert, (which she was entitled to do) who did not cite any authority to support his opinion that the mere use of the passport effectively placed the subject under an acknowledgement of allegiance to the United States. That decision was heavily influenced by the Jamaican case of Vaz v Dabdoub (unreported Claim No. 2007 HCV 03921 delivered on April 11 2008; CA 45/2008 and CA 47/2008, written judgment delivered on March 13 2009). The decision in Vaz v Dabdoub relied on Joyce v DPP.
Since then, the issue arose again in another British Overseas Territory of the Cayman Islands in the case of Hewitt v Rivers and Others ( Cause No. 198 of 2013, written judgment delivered on August 9 2013) and was considered in a lengthy review of the historical origins of such provisions and the relevant case law in the UK, the Commonwealth and the Caribbean, including the Joyce case and the 2013 Selver case in the Turks and Caicos Islands. US law experts also gave evidence in the Hewitt case and cited US settled case law in support of their opinions.
The Hewitt case, in distinguishing the Vaz case and the Joyce case established clear authority for the proposition that if an Islander is born in a country outside of the Turks and Caicos Islands, which bestowed on him or her at birth the nationality of that country (e.g. the United States or the Bahamas) she or he would not be disqualified from being nominated to be an elected member of the House of Assembly by virtue of the fact that she or he had applied for renewal of his or her passport after she or he reached the age of 18 years.
Smellie CJ made clear in his very full judgment that a passport is only evidence of a nationality. It is not in itself a pledge of allegiance to a foreign power. Such a person would only be evidencing a nationality that she or he already had through the act of his or her parents in allowing him or her to be born there, and merely obtaining a new passport would not amount to an acknowledgement of allegiance by the person concerned.
The Hewitt case is also authority for the proposition that an Islander who obtains a foreign citizenship other than by operation of law through birth, such as through naturalization or comes under an acknowledgement of allegiance to a foreign power or state through taking an oath, service in their armed forces, other public office in that foreign state requiring such an oath.
The Hewitt judgment was held in November 2013 to be final by the Cayman Islands Court of Appeal, which included the President of the Court of Appeal in the Turks and Caicos Islands, Mottley JA.
On the basis of this latter judgment, I am of the opinion that an Islander who is also a citizen of a foreign state, having not acquired that citizenship, by virtue of his or her own act and merely having acquired that foreign citizenship through birth alone would not be disqualified under section 49(1)(a) of the Constitution, even in circumstances where such a person has applied for or renewed a passport of that foreign state. However, were an Islander has acquired citizenship through naturalization or has acknowledged allegiance to a foreign power or state through naturalization or taking an oath, service in foreign armed forces or through some other act and has not renounced that citizenship or renounced that allegiance, such a person would be disqualified under section 49(1(a) of the Constitution.
Regards,
Lister Dudley Lewis
Supervisor of Elections
