BASSETERRE, St. Kitts – AFTER lengthy court proceedings over the Federation’s constituency boundaries, lawyers for the Government and opposition People’s Action Movement (PAM) are headed back to argue over recently passed legislation regarding dual citizenship.
The new legislation, entitled the National Assembly Elections (Amendment) Act 2009, was passed in Parliament in early July and stipulates a number of new requirements for individuals who wish to contest General Elections.
Under the law, a candidate for nomination is required to take an oath on Nomination Day that he or she does not hold dual citizenship. In the case that a prospective candidate held dual citizenship in the past, the new amendment dictates that proof of renunciation must be produced.
Another important change that came with the new legislation is that on Nomination Day the returning officer shall be responsible for “administering the oaths and affirmations... [and will] receive and approve proof referred to in subsection (5A)(b)”. This is stated in Section 3 Subsection 5D of the Act.
The PAM party made immediate objections to the amendment, as it was felt that it was directly aimed at two of the party’s executives: Leader Lindsay Grant and Deputy Leader Hon. Shawn Richards.
Both men announced the renunciation of their US citizenships shortly after the new legislation was passed.
On September 26, PAM lawyers filed an originating motion to strike down the amendment. Legal Counsel Constance Mitcham was very critical of Parliament for passing a law which, in her view, “ousts the jurisdiction of the Court”.
“We are challenging the amendment that the Government passed to give the returning officer power to determine people’s renunciation of citizenship. All election matters under the Constitution must be dealt with by the Court on an election petition... and have to be dealt with within 21 days of an election.
“You cannot have an opposing party determining whether you can run for elections. The Constitution says that election matters must be dealt with by the High Court, obviously for fairness, so that each party has an equal opportunity to go to the Court for redress,” Mitcham argued.
Yesterday, almost a month after the September originating motion was filed, PAM filed an application for the injunction against the dual citizenship legislation, so as to restrain the government from applying the new law in case an election is called.
“They should not act on this new law giving power to the returning officer until the matter is heard. There are no problems with having the elections, but we are saying that we want an injunction to restrain them from stopping people on Nomination Day,” Mitcham said.
Following the originating motion set down by PAM in late September, lawyers for the government side quickly moved to strike it down. By September 29, government attorneys had made a formal application to the High Court.
In the pleaded grounds, the Government argued that the returning officer does not make any decision as to whether or not a candidate has renounced, or unlawfully renounced, his or her dual citizenship. The arguments indicated that the discretion and duties conferred on the returning officer by the Act “accords with the Constitution and principal law”.
Government lawyers also alleged that the PAM has been abusing the process of the Court, as the amendment, in their view, does not prevent the right to the protection of the law.
SKNVibes contacted Government legal counsel Sylvester Anthony, who said the Constitution requires that candidates be duly qualified to be elected to Parliament, emphasizing that the amendment simply calls for full disclosure from prospective candidates.
“What the amendment did was to amend the nomination form to provide for a declaration as to the citizenship of a proposed candidate. There is nothing in the amendment that ousts the jurisdiction of any court, or that replaces what already exists in relation to the filing of a petition to challenge the election of a person to the National Assembly and it is irresponsible to suggest otherwise!” Anthony declared.
Mitchum told SKNVibes that her party is hoping the matter could be heard this Monday (Oct. 26), the same date that the Government’s application to strike down the originating motion is set to be heard.
In response, Anthony questioned the intention for requesting a hearing at the same time when the government had requested to have its case heard.
“Well, I don’t want to ascribe motives to other people’s conduct, but it seems to me that from looking at the application that was filed yesterday, it is exactly the same injunction that is requested in the originating motion.
“All I can assume is that since we have applied to strike out the originating motion, this is an attempt to circumvent the application and to seek to have an application for an injunction heard before our application for strike out is heard, and that is not going to be tolerated,” Anthony said.
Both sides will formalize their arguments on Monday before His Lordship Francis Belle at the Basseterre High Court.
