After jumping on any number of limbs – bribery; the meaning of “majority” in an odd number assembly and evidently “moral turpitude” – gambling – the People’s National Congress (PNC)-led Government, via the proxy of a “private citizen”, filed a lawsuit in the High Court objecting to the validity of Charrandas Persaud’s’ vote in the No-confidence Motion on December 21, 2018, on the ground of his dual citizenship with Guyana and Canada.
While it is acknowledged that Guyanese can hold dual citizenship, the Government’s proxy is contending that the Constitution explicitly restricts such individuals from being elected as Members of Parliament. They based their claim on Article 155(1) of the Constitution which states: “No person shall be qualified for election as a member of the National Assembly who – (a) is by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state…”
While the law is very clear on its face, we cannot ignore the context where Persaud – and evidently 25 other MPs – were allowed to stand for elections to the National Assembly in 2015. And indeed, this closing of the eyes by the powers that be on both sides of the Assembly to Article 155 (1) has been the default setting from the time this Article was introduced in 1980. We are therefore entering uncharted waters and as such we need to examine the issue carefully.
Guyana’s constitutional framework is not surprisingly influenced by its status as a colony of Britain, as is indeed the other members of the Commonwealth, most of which, such as Australia, have the identical stipulation of Article 155 (1) but also choose not to enforce its mandate. However, from mid-2017, Australia has been in the throes of a “parliamentary eligibility crisis” when claims that their comparable Article 44 (1) had been violated by several MPs, went to their High Court. The Court ruled that it had previously held that citizens are ineligible for election unless they have taken “reasonable steps” to renounce the foreign citizenship before nomination, and reiterated its rule. Since then, at least 14 MPs have been forced to resign – in one case forcing the Government to fall.
Our High Court would have to take cognizance of such far-reaching consequences flowing out of what is essentially a political question. Because the stipulation of “swearing an allegiance” to a foreign country is an attempt to ensure that the MP gives the subject country his or her total loyalty. Canada, for instance, has no restriction on any dual or even triple citizens from being elected to her Parliament – and in fact encourages the practice because its “reflects the diversity of its citizens in its law-making institution which affects all citizens.” In Britain, any citizen of a Commonwealth country or the Republic of Ireland can stand for election to the House of Commons.
That the presumed question of loyalty of only Charrandas Persaud is being questioned when, according to information received by this newspaper, he was recalled and replaced by another individual who is a dual citizen of the US, which has an explicit oath of citizenship renouncing previous allegiances, is direct proof that Article 155 (1) is being selectively and discriminatorily applied by the PNC-led coalition. Once again they have violated the spirit of the Constitution and undermined the rule of law.
For the last quarter of a century, there have been strenuous efforts by both parties when in Government to encourage the citizens from the “Guyanese Diaspora” to return and lend their skills our development. To now deny them of the right to participate in crafting the laws that they will operate under will only dissuade them from returning. If the coalition has a principled stand to deny dual-citizens from becoming citizens they should start by doing what one law professor called, “cleaning house”.
But under the doctrine of “desuetude”, which deals with laws that have not been enforced for long periods, the Court should not compel enforcement of Article 155 (1) in this case.
