THE Mona law faculty has recommended that the joint select committee of Parliament deliberating the Act which will transition Jamaica to a Republic, in settling the issue of deprivation of citizenship, decide whether there “should be an explicit provision stating that no person should be deprived of Jamaican citizenship if it would render them stateless”.

The law faculty, in referencing the proposed section of the Act which allows for the deprivation of citizenship for those who are not Jamaican by birth, descent or registration as a citizen based on marriage to a citizen of Jamaica, said the committee should contemplate making that provision “to align with International Human Rights obligations such as the 1961 Convention on the Reduction of Statelessness”. In an additional question in its submission, the faculty also asked the committee whether citizenship by descent should be clarified by placing a definition.

Wednesday, Minister of Legal and Constitutional Affairs Marlene Malahoo Forte, who chairs the committee, which has been poring over The Constitution (Amendment) (Republic) Act, 2024 which will abolish the Constitutional Monarchy and transition Jamaica to a republic, said “the real question was, whether in specified circumstances power should be reserved to the Government to deprive citizenship where the interest of the State would be harmed instead of helped”.

“The issue of deprivation of Jamaican citizenship arises controversially in cases where someone is invoking an entitlement to Jamaican citizenship in circumstances where that person also has another citizenship and is facing deportation. That is the real problem case for Jamaica because the constitution allows for citizenship by descent. We have seen cases where, though entitled, that citizenship has not been acquired formally and where the person is a convict and is facing deportation particularly in the North American context, they then invoke the Jamaican citizenship,” Malahoo Forte pointed out.

“The question arises, if you have another citizenship and you are not otherwise attached to Jamaica and the only time you want to invoke Jamaican citizenship is when you are facing deportation after having been convicted of a crime. Should a State be given the power to make an assessment and determine what is in the best interest of Jamaica in such a case? That is what it boils down to,” she reasoned.

She said the Passport, Immigration and Citizenship Agency (PICA), in appearing before the committee earlier, had highlighted the challenges posed in circumstances where persons facing deportation want to invoke their Jamaican citizenship.

In the meantime, support personnel from the Office of the Chief Parliamentary Counsel on Wednesday pointed out that in relation to the Convention on the Reduction of Statelessness, Jamaica had entered a reservation on that issue.

That reservation states, “upon acceding to the Convention on the Reduction of Statelessness, the Government of Jamaica declares, pursuant to Article 8 of the Convention, that it retains the right under its laws, to deprive a person of his or her nationality in circumstances outline in paragraph three of that Article. Paragraph 3 of that Article contains the obligation to expressly state that the contracting state would not render the party stateless.

“So Jamaica is saying that it is not giving up its power to refuse citizenship to someone, where that person has another citizenship and also where it would become a problem for the State. It’s important for those listening to appreciate that this matter is a matter which has come some way; amendments were made to the constitution in the 1990s and I know that those who fought for those amendments did so in circumstances where their descendants would not be entitled to Jamaican nationality,” Malahoo Forte emphasised.

“The intention is not to disturb those gains but to recognise that over time we have seen threats to the State of Jamaica and threats to the communities and burdens being placed on the national purse in respect of people who were born and raised in other jurisdictions, socialised, chose a life of crime and then when they are to face the consequences they want to dump the burden on Jamaica and Jamaican people. We also know that we have had serious challenges with some who have been involuntarily returned to the jurisdiction, so this matter is a matter of importance,” she added.

Chief Parliamentary Counsel Judith Grant, in responding to the law school’s suggestion regarding the need for a definition of “descent”, pointed out that the proposed new section 10 (c) will empower Parliament to prescribe the grounds and procedure by which a person may become a citizen of Jamaica by descent.

“So because of that it would not be desirable here to insert a definition for descent because that is being left for Parliament to prescribe,” she stated.

Said Malahoo Forte: “If the intention is to reserve a power to deprive someone of Jamaican citizenship in specific circumstance then that would have to be stated in the constitution because currently what is being proposed is simply for Parliament to be empowered to pass laws to set out the procedure by which deprivation can take place but that would have to be done in the context of what is constitutionally permissible.”

She said, however, if a decision is taken to limit the degree of descent then that can be done by an Act of Parliament or specifically set out in the constitution.

“It would be a matter of policy to determine where, but the intention is not to put all the details in the constitution,” she noted.

Declaring that, “this is a matter which would have to be treated with great care and great caution”, Malahoo Forte made it clear that “there is no intention to deprive those who prided themselves in their Jamaican citizenship by descent to change that’.

“We also want to say that we want Jamaicans to be law abiding people and all who wear the nationality of Jamaican to be respected as law abiding people. Every time a Jamaican commits an offence overseas and is convicted or is caught in illicit runnings the entire nation is punished for that. That is what caused travel restrictions to be imposed on Jamaica, visa conditions to be imposed because of the acts of a small number of people. Going forward as we relay the foundations we have to sort out what will the name Jamaica stand for and when you raise the Jamaican nationality what does it mean. So we know already that the provisions relating to citizenship will come under review,” the committee chair said.