The Jeff Cumberbatch Column – A Barbadian Miscellany I

The local constitutional conundrum wrought by the cocktail of the unforeseen results of the recent general election; the nominations to the Senate of at least three individuals ineligible under existing law; and the charmed creation of an Opposition leader from among the ranks of the governing administration continued apace last week. It was all to be added to by the news that three interested parties had filed a petition against Barbados before the Inter-American Commission on Human Rights challenging the legitimacy of the statutory provisions in our Sexual Offences Act that criminalize buggery between consenting partners and serious indecency. The latter is an offence that, on a literal interpretation, covers almost any imaginable sex act-

An act of “serious indecency” is an act, whether natural or unnatural by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire.

Needless to say, it is rarely prosecuted when it occurs between consenting adults.

The incongruity of the appointment of His Grace the Bishop Joseph Atherley MP as the Leader of the Opposition, given the substance of his recent electoral campaign, was brought home forcibly this week with the disparate views expressed by the Opposition leader and his nominated Senator during debate in the Lower and Upper Chambers with regard to the provisions of the Constitution (Amendment) Act 2018.

The appointment of a formal Opposition leader so as to give the façade of bipartisan parliamentary consideration of legislation is not a credible substitute for an Opposition party enabled by trained research assistance and other administrative support. However, in light of the express text of the Constitution, the Governor General had little option but to appoint Bishop Atherley, once he had declared his intention of not supporting the Government and once that assertion accorded with her judgment According to section 74 (2)-

Whenever the Governor-General has occasion to appoint a Leader of the Opposition he shall appoint the member of the House of Assembly who, in his judgment, is best able to command the support of a majority of those members who do not support the Government…

As for the constitutional amendments themselves, two were of course necessary to enable the governing administration to have in Parliament those whom, in its considered opinion, are best able to articulate its policies in the Upper House. Few would begrudge the new administration this right, especially given its overwhelming support by the electorate. And I am not among those who believe that the Constitution is unalterable. After all, even the document itself creates the means for its own alteration.

However, one would reasonably expect in the interests of civic engagement and trust that any fundamental changes would be made subject to public discourse after the case for their revision has been clearly put. I do not imagine that the amendment relating to the residency requirement of a senator would qualify as a fundamental alteration at the present day, although the level of entrenchment of that particular provision might legitimately raise an eyebrow as to the framers’ rationale.

Less so, however, is the amendment relating to the proscribed dual nationality of the parliamentarian or, as it is so euphemistically put in the Constitution, one who is “by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State…”

A similar provision is located within most of the regional Constitutions. For example, section 48(1) of the Trinidad & Tobago Constitution 1976 states-

No person shall be qualified to be elected as a member of the House of Representatives who-

  • is a citizen of a country other than Trinidad and Tobago having become such a citizen voluntarily, or is under a declaration of allegiance to such a country…”

and section 40 (2)(a) of the Jamaica Constitution provides-

“No person shall be qualified to be appointed as a Senator or elected as a member of the House of Representatives who- 

is, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign Power or State…

The reason for this disqualification seems to be a secular version of the axiom that “no man can serve two masters”, but the absence of popular discourse on the issue before its passage robbed the nation of its being able to weigh in intelligently on the matter. I had commented a few days ago in an opinion  piece entitled An unforeseen event that the Constitutional draftsman had made a hash of our section 75 which might have been intended to cater to the circumstance where there was no apparent Leader of the Opposition in the Lower Chamber but, which had, by its less than lucid provision, created some doubt in that regard. I had suggested as an alternative the clearer Trinidad & Tobago provision-

Where the office of Leader of the Opposition is vacant, whether because there is no member of the House of Representatives so qualified for appointment or because no one qualified for appointment is willing to be appointed, or because the Leader of the Opposition has resigned his office or for any other reason, any provision in this Constitution requiring consultation with the Leader of the Opposition shall, in so far as it requires such consultation, be of no effect. [Emphasis mine]

I note however, from the text of the Bill that we have chosen to retain the identical text from the original section 75, while nevertheless mandating the Governor General to “after consultation with the political parties which do not support the Government, act in his discretion in the exercise of any function in respect of which it is provided in the Constitution that the Governor-General shall act in accordance with the advice of the Leader of the Opposition…”

This new provision appears now to require the Governor General to consult in a circumstance where the former provision empowered him to act in his sole discretion. I trust that it would have been noted by officialdom that there is a constitutional ouster clause applicable to any such  arrangement. Section 32(5) provides –

Where the Governor-General is directed to exercise any function in accordance with the recommendation or advice of, or with the concurrence of, or after consultation with, any person or authority, the question whether he has so exercised that function shall not be enquired into in any court.

Finally, I observe that the debate in the Senate yesterday proceeded in the absence of at least one of the nominated members. The government, doubtless out of an abundance of caution, had chosen to appoint two Senators pro tempore. The legislation was accordingly passed and I might be “caviling on the ninth part of a hair” but the question does beg asking, “Was the Senate legally constituted in those circumstances?” And what is to be made of the provision in section 36 (1)?

The Senate shall consist of twenty-one persons who, being qualified for appointment as Senators in accordance with the provisions of this Constitution, have been so appointed in accordance with the provisions of this section.

To be continued…

 

 

 

99 comments

  • de pedantic Dribbler

    @Dean Jeff, two questions this morn.

    One. This you surely have been asked many times before but only now sitting in your Sunday teaching sessions has the issue jumped out at me. So do induldge.

    How is it that the T&T constitution shows such marked difference (in the areas discussed in your columns at least) from the Bajan and in this case that of Jamaica?

    These three islands all gained independence within four years of each other after the failed Federartion attempts and one can assume that the constitutions were similarly prepared under the same Colonial office secretariat.

    Were the Dr Williams trinis just more diligent on the clarity of their language or is their constitution a more ‘recent updated document?

    You have also cited the former British Honduras in your essays and they too (and Guyana of course) became an independent Belize around same time as these others. How does that doc compare at these points for language similarity/difference?

    And two. Are you indeed caviling on the ninth hair (or dropping your shots way short on a par 5 ninth hole 😁) or is this a significant issue.?

    Last week you very clearly pointed out the distinction with ‘majority of all senators of the chamber’ and ‘a majority of all those present’ and I understood you to then to be drawing a clear dividing line…no splitting.

    Is it that the Senate is using the ‘majority of all those present’ as their principle and are you advising that this is legally unsound or just a hair splitting non-issue? Or have I misinterpreted this line of reasoning?

    Liked by 1 person

  • Jeff Cumberbatch

    How is it that the T&T constitution shows such marked difference (in the areas discussed in your columns at least) from the Bajan and in this case that of Jamaica?

    These three islands all gained independence within four years of each other after the failed Federartion attempts and one can assume that the constitutions were similarly prepared under the same Colonial office secretariat.
    Were the Dr Williams trinis just more diligent on the clarity of their language or is their constitution a more ‘recent updated document?

    @ DPD, The Trini Constitution has always been different in form from those of Barbados and Jamaica. I have been informed that the Trinidadian is from an Indian draft, while ours and Jamaica;s seem to be minted straight out of Whitehall. Trinidad revamped its Constitution in 1976 on becoming a republic, but the changes were not radical.

    Liked by 1 person

  • Jeff Cumberbatch

    Are you indeed caviling on the ninth hair (or dropping your shots way short on a par 5 ninth hole 😁) or is this a significant issue.?

    Last week you very clearly pointed out the distinction with ‘majority of all senators of the chamber’ and ‘a majority of all those present’ and I understood you to then to be drawing a clear dividing line…no splitting.

    Is it that the Senate is using the ‘majority of all those present’ as their principle and are you advising that this is legally unsound or just a hair splitting non-issue? Or have I misinterpreted this line of reasoning?

    @ DPD, You have not misinterpreted. The thing with legal argument is that an opinion, no matter how learned, remains just that, an opinion, until the court, preferably the apical court, has issued a ruling on it. While I do believe that a constitutionally legal Cabinet should have 21 members to be so called, this is not a point worth pursuing at a higher and more expensive level. In any case, here exists a “presumption of constitutionality” that might override any objections as to form.
    And while a quorum of the Senate is eight members only, that should apply only in a situation where there is already a properly constituted Senate, in my view.

    Here is the Belizean provision for the circumstance when there is no Leader of the Opposition-

    during any period in which there is a vacancy in the office of Leader of the Opposition, the provisions of this Constitution containing the requirement that action shall be taken in accordance with the advice of, or after consultation with, or with the concurrence of, the Leader of the Opposition shall have effect as if there were no such requirement.

    And the Senate-
    Subject to subsection (2), the Senate shall consist of twelve members (in this Constitution referred to as “Senators”) who shall be appointed by the Governor-General in accordance with the provisions of this section

    As to the residency requirement-
    …a person shall be qualified to be appointed as a Senator if, and shall not be qualified to be so appointed unless, he-
    a. is a citizen of Belize of the age of eighteen years or upwards; and
    b. has resided in Belize for a period of at least one year immediately before
    the date of his appointment.

    Liked by 2 people

  • The Church in T&T protesting against the recent court decision to remove the buggery law.

    Liked by 1 person

  • de pedantic Dribbler

    Thank you @Jeff.

    Interesting numbers there re Belize Senate.

    I recall quite a lengthy trip of over an hour (not due to traffic) from Belize City to the capital Belmophan so physically that nation dwarfs Bdos but does not have a significantly larger population. Thus it seems quite ‘amusing’ that we need 21 senators and they make do with 12. Ah well, what’s a few more state sponsored salaries to talk and talk!

    Liked by 1 person

  • My Canadian influenced opinion is that the Barbados ” Sexual Offences Act ” needs to change.

    “There is No Place for the State in the Bedrooms of the Nation” Parliament & Policies. Quote from then-Justice Minister Pierre Trudeau when he introduced modernizing reforms to the Criminal Code1 in 1967 that decriminalized homosexual acts.

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  • @Hants

    The issue of removing the buggery laws from the books have gone passed the government. They will have to remove or see the matter taken to the courts playing out in Trinidad. I see some making this a political issue because Mia is now prime minister.

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  • Jeff wrote “An act of “serious indecency” is an act, whether natural or unnatural by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire.”

    I guess they forgot to add ” in a public place “. That would be reasonable.

    Like

  • @ David the LGBT community will be emboldened by having a female Prime Minister.

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  • pieceuhderockyeahright

    @ The Luminary Jeff Cumberbatch

    A good morrow to you.

    De ole man would also beg your indulgence on a part of your text that I don’t understand (though in truth de ole man don’t understand all of it but just trying to appear intelligent)

    You said and I quote “…The appointment of a formal Opposition leader so as to give the façade of bipartisan parliamentary consideration of legislation is not a credible substitute for an Opposition party enabled by trained research assistance and other administrative support…”

    Now while I will avoid commenting on the uncharacteristic timbre of the word façade Heheheheh I would ask you to explain to me what the segment about “an opposition enabled by trained research assistance and other administrative support…”

    I am not clear on that.

    Are you saying that there were other options available to enable “The Opposition” that were not taken?

    Do forgive my palpable influence which reflects a Brumley Stand Pipe schooling.

    [[Need the ole man share with you that the only time de ole man been to de University in Cave Hill was when as a youth I was did checking a girl up by Montgomery School and 10 fellers who din like no external competition from an outsider run de ole man all down Cave Hill through the back where dere was dounks trees and ting. I put dis in square brackets causing i ent want nobody to know how de ole man run like badword to avoid getting some warm liks]]

    Liked by 1 person

  • pieceuhderockyeahright

    @ the Honourable Blogmaster your assistance please with an item of little impact

    Liked by 1 person

  • Who was the senator seated next to Caswell?

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  • @Jeff
    Earlier you said you hadn’t read Professor Welch’s opinion piece, perhaps you’ve had the opportunity to see it since then if not here it is:
    http://epaper.barbadostoday.bb/html5/reader/production/default.aspx?pubname=&edid=504ba608-8948-4b6a-bcbc-b53890d2182d

    Like

  • That s/b pg 16

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  • Jeff Cumberbatch

    You said and I quote “…The appointment of a formal Opposition leader so as to give the façade of bipartisan parliamentary consideration of legislation is not a credible substitute for an Opposition party enabled by trained research assistance and other administrative support…”

    Heheheheh I would ask you to explain to me what the segment about “an opposition enabled by trained research assistance and other administrative support…”

    I am not clear on that.

    Are you saying that there were other options available to enable “The Opposition” that were not taken?

    @Piece ,No, I am simply comparing the political effectiveness of a one-man Opposition as against that of an organized party with backroom research skills available. Unfortunately the Barbadian electorate preferred it that way.

    Once the GG was convinced that the Bishop really did not support the Government, she had no choice…although hits selection does violence to the text of the Constitution as Pedro Welch argued to me…

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  • Thanks Sarge, just downloaded it.

    I knew I was not mad!!

    Like

  • Jeff Cumberbatch

    Earlier you said you hadn’t read Professor Welch’s opinion piece, perhaps you’ve had the opportunity to see it since then if not here it is:

    @ Sarge, Thank you kindly!

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  • @Jeff

    Of practical concern is if the selection by the GG can be challenged in Court. What does it portend!

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  • Can the GG revoke the appointment of the leader of the opposition?

    On what grounds can she revoke the appointment of the PM?

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  • The Constitution assumes that a plurality of association is required for an aspirant to the office of Leader of the Opposition to be recognized as having the support that qualifies him/her to be so appointed.

    Under this assumption, it seems clear that a single person cannot, by definition, be considered to have majority
    support or “group” support in the absence of a plurality of such support.

    In short, a single person cannot constitute a majority in the absence of like-minded others.

    Moreover, merely crossing the floor while remaining a member of the governing party would not, and could not, in itself, so qualify such a single person in the absence of the required plurality.

    We may also note that most dictionaries define a majority as the greater number or part, thus requiring a plurality.
    +++++++++++++++++++++++

    That’s what I got from Pedro Welch.

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  • Jeff Cumberbatch

    Of practical concern is if the selection by the GG can be challenged in Court. What does it portend!

    Unless it can be established that the GG acted ultra vires, the matter is settled since she alone had to be satisfied of the issue of non-support of the Government

    Liked by 1 person

  • Thanks Jeff, this is the point some in the forum need to treat with.

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  • Like you and was it Senator Monique Taitt during the debate was a little disappointed the amendment to address the LoO issue was not circulated for wider debate in light of the GG and Atherley working to resolve the quandary caused by the 30-0 victory.

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  • Jeff Cumberbatch

    The Constitution assumes that a plurality of association is required for an aspirant to the office of Leader of the Opposition to be recognized as having the support that qualifies him/her to be so appointed.

    Under this assumption, it seems clear that a single person cannot, by definition, be considered to have majority
    support or “group” support in the absence of a plurality of such support.

    In short, a single person cannot constitute a majority in the absence of like-minded others.

    Moreover, merely crossing the floor while remaining a member of the governing party would not, and could not, in itself, so qualify such a single person in the absence of the required plurality.

    We may also note that most dictionaries define a majority as the greater number or part, thus requiring a plurality.

    @ John, it is clear that the Constitution does not provide for what occurred last month. However, in my view, the doctrine of necessity would step in to hold that there ought to be an Opposition in a democracy and thus permit the current scenario, Pedro’s point would also hold that even if Freundel Stuart alone had won his seat, he should not have been appointed Leader of the Opposition. I respect the point of English language, but I am not so sure I agree fully

    Liked by 2 people

  • Jeff Cumberbatch

    On what grounds can she revoke the appointment of the PM?

    If the House of Assembly by a resolution which has received the affirmative vote of a majority of all the members thereof resolves that the appointment of the Prime Minister ought to be revoked and the Prime Minister does not within three days of the passing of the resolution either resign or advise the Governor-General to dissolve Parliament, the Governor-General shall, by instrument under the Public Seal, revoke the appointment of the Prime Minister. -section 66(2)

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  • Is Monique Taitt a member of the DLP? Is Kevin Boyce a member of the DLP ?

    Is it possible that the GG chose them as defacto “opposition senators” ?

    Liked by 1 person

  • @Hants

    Do not know if they are DLPites except to say that Monique Taitt was Chairperson of the NCF under the last DLP government, does this make her a DLPite? Because Kevin’d father was a former minister in the last government does this make him a DLPite?

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  • @ David,

    that makes them DLPites in my opinion based on historical evidence.lol

    Liked by 1 person

  • @Hants

    By your logic Jeff is a DLPites given the hats he wears not so?

    Like

  • Jeff

    Is what Monique Taitt saying in today’s Sunday Sun true? That is,the constituition does not allow for Temporary senators?

    Liked by 1 person

  • pieceuhderockyeahright

    @ Brother Hants

    As to you question as to whether Senator Monique Taitt is a DLP or I’d any person is a DLP de ole man would advise as follows.

    To ascertain if anyone, who is not part of the vacillating oligarch community which by its very being is apolitical euphemism for they butter the corridors, IS EITHER BLP OR DLP, check the cumulative amount paid to them, or their company/ies, or their proxies, or their wife’s catering company, for their services during the tenure of a specific party and you will see what party they are.

    Like

  • @David
    I don’t think that amendment required one to be pro/anti both major political Parties to argue cogently about the amendment. If one is part of today’s mobile generation they would say “there but for the grace of God go I” and argue strenuously for its passage. I did agree with Senator Taitt’s point about withdrawing the section dealing with the LOO since its immediacy was not an issue but that was not given further attention. One gets the impression that the Gov’t does not want to come back to this issue anytime soon.

    Like

  • @Sargeant

    We agree!

    One cannot cherry-pick issues to be transparent. There is a process to change the Constitution but at the same time we have to consider it is an important body of laws directing how we govern and public feedback should be garnered to ensure all are onside.

    Like

  • pieceuhderockyeahright

    @ T Inniss

    I ent no lawyer nor no politician nor no public relations officer but any idiot would not have used the words “temporary senators” in any public broadcast.

    The same way Atherley would have been asked, IN PRIVATE, to go the the batting plate as the sacrificial lamb, so too should such a circumventory arrangement have been made with Bradshaw and John Williams IN PRIVATE

    EVEN IF PREDATED LETTERS OF RESIGNATION WERE SECURED FROM THE LATTER FELLOW AT LEAST, cause he purportedly ent known to keep he word pun a pang.

    Steupseee it look like De ole man and he grandson going have to offer me services to Madamoiselle Prime Minister Mottley to help she through this thing doah.

    I mean looka all dese ingrunt mistakes and glaring omissions

    Whu effing dere was a real real opposition or a valid Third Paty Movement dese would be the issues dat dem should be prosecuting ALL LIKE NOW!

    [[Anybody heah know Atherley number?

    De ole man would like wunna to call he and axe fuh a pick to help dem run dem opposition public relations campaign.

    I had was to put dat down in square brackets causing i ent want dem to know dat i begging MAM for a Piece, and Hartley Henry fuh a Piece and Kaymar wid she sexy self for a Piece and nor Atherley for a Piece.

    I is a real pieceuh_olewhore fuh trufe

    Next ting you know I gine be begging N*** fuh a piece]]

    Heheheheh

    Like

  • @ David,

    By my logic G G does not mean Governor General. Ask pieceuhderockyeahright eff yuh doan believe me. lol

    Please do not use my logic to apply to Jeff and the other highly educated and accomplished maguffees on BU.

    @ pieceuhderockyeahright I hope you got good headphones to listen not to the G G but to G G. lol

    Like

  • Jeff Cumberbatch

    *Jeff

    Is what Monique Taitt saying in today’s Sunday Sun true? That is,the constituition does not allow for Temporary senators?

    @ Mr Inniss, The Constitution makes no express provision for them, but that is not the sane as proscribing them. The two gentlemen are full-fledged senators. That they will eventually resign to make way for others does not make them any less so!

    Like

  • Many need to read the constitution and see for themselves that the only person the GG has to answer to for any decision she makes regarding the island…is buckingham palace and no one else…her power over all things Barbados is total.

    Like

  • Jeff

    @ John, it is clear that the Constitution does not provide for what occurred last month. However, in my view, the doctrine of necessity would step in to hold that there ought to be an Opposition in a democracy and thus permit the current scenario, Pedro’s point would also hold that even if Freundel Stuart alone had won his seat, he should not have been appointed Leader of the Opposition. I respect the point of English language, but I am not so sure I agree fully

    ++++++++++++++++++++

    I would put it differently.

    The Constitution provides four mechanisms which prevent a Parliament being formed in a clean sweep election.

    First – There shall be a leader of the opposition

    Second – He shall lead a group (plurality)

    Third – He shall nominate 2 senators

    Fourth – The senate Shall be constituted by 21 members

    The Constitution therefore does provide for what happened last month.

    It makes it a nullity.

    What happens in the case of a null election?

    Do we need a constitution to tell us?

    Like

  • And as Jeff will confirm…being head of the local arm of the UKs privy council…the GG cannot be questioned by nor does any of her decisions fall within the boundaries of any local court..

    the local privy council which she has to call to session, also operates outside the boundaries of the local courts.

    Liked by 1 person

  • Tomorrow there is supposed to be a mini – budget given by Auntie Mia – 2 hours!!.

    After her delivery, the leader of the opposition will respond.

    Then 28 government members will speak, each for 30 minutes or however long – 14 hours.

    … followed by Auntie Mia to close – 1 hour.

    I can’t tek listening to no 29 Bees and Auntie Mia blow a lot of hot air in an unconstitutional house of assembly for 17 hours.

    If I felt like going to a pantomime, I would go to the one they normally have at St. Winifred’s before I would listen to this idiocy.

    At least it would be over in a couple of hours.

    Like

  • Jeff, we are aware that investors accept the risk of financial loss when making an investment. In the specific case of Government debt, is there an obligation on the part of the Government to use best efforts to prevent investors incurring a loss due to default? Is there a case of gross negligence to be made against a Government that fails to use all remedies to collect its revenues if the failure results in default and a loss to its creditors?

    Liked by 1 person

  • The problem is lawyers and legal precedents.

    The precedent (past) is Keith Mitchell.

    To a trained lawyer since there is a precedent, then 30-0 is a valid result.

    Except the trained lawyers don’t seem to understand who and what Keith Mitchell is!!!

    He is 100 times smarter than any of them and clearly, the supreme con artist.

    .. and then there is Grenada’s sorry post independence history which lends itself to the creation of a Keith Mitchell.

    Remove Grenada and Mitchell from the equation and build a case on what is written and exists here in Barbados.

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  • Jeff, we are aware that investors accept the risk of financial loss when making an investment. In the specific case of Government debt, is there an obligation on the part of the Government to use best efforts to prevent investors incurring a loss due to default? Is there a case of gross negligence to be made against a Government that fails to use all remedies to collect its revenues if the failure results in default and a loss to its creditors?

    +++++++

    Add the unconstitutionality of the House of Assembly and perhaps its “members” are personally liable!!

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  • We have not heard peep out of MoneyB in all of this, probably waiting for the dust to settle.

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  • Bernard Codrington

    Government debentures,treasury notes and treasury bills are considered low risk/ safe investments. The tax payers are supposed to repay. There should be no loss of principal. Of course an irresponsible government could legislate a hair cut…..a forced reduction in the face value of these investment instruments.

    Like

  • A company indemnifies its directors once they act in good faith.

    How are members of the House of Assembly indemnified?

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  • @Bernard

    You could have added that the previous government and Government ‘coerced’ ordinary Barbadians to buy bonds for the sake of country. To administer a haircut as you hinted could be deemed cruel and inhumane.

    Liked by 1 person

  • Bernard Codrington

    These items are generally rolled over at maturity since they are bought for the income generated ; id est above average interest yield.

    Like

  • “Bernard Codrington June 10, 2018 2:29 PM /… Of course an irresponsible government could legislate a hair cut…..a forced reduction in the face value of these investment instruments.”

    But is there a legal basis to challenge such action if a Government has been grossly negligent in collecting its revenues, as the negligence would reward its debtors, especially where the debtors are seen to be able to pay their debts to the Government, and penalise its creditors.

    Liked by 1 person

  • David
    Kevin Boyce sat on the BIDC Board. I doubt he’ll be a DLP “senator”, but we’ll have to wait and see.

    Like

  • Bernard Codrington

    @ David BU at 2 :33 PM

    You are right. They were persuaded to buy them instead of holding low interest bearing Savings and Time deposits. To which they had easy access.

    But that is the past . Let us hope ,as we go forward, that this country is managed in the interest of the vulnerable groups’,

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  • @Hants June 10, 2018 11:52 AM “Is Monique Taitt a member of the DLP? Is Kevin Boyce a member of the DLP?”

    The late cabinet DLP Cabinet Minister Brandford Taitt’s daughter; and former DLPmCabinet Minister John Boyce’s son.

    Methinks the DLP has “bloodlines” too.

    Unless the fruits have fallen real, real far from the father trees.

    Lolll!!!

    Liked by 1 person

  • Jeff Cumberbatch

    The Constitution therefore does provide for what happened last month

    ^It makes it a nullity*.

    What happens in the case of a null election?

    Do we need a constitution to tell us?

    @John, The Constitution’s provisions are limited to the circumstances where results are such as those that obtained in the past. If we waned to make the Constitution applicable in all circumstances, then we should have amended our electoral laws to preclude such a result rather than trying to fit a square Constitution into a round hole as you are seeking to do.

    You cannot claim that because the result does not fit your interpretation of the Constitutional text that it is a nullity. It was conducted in strict compliance with existing electoral law that was valid under the Constitution.Which section of the Constitution invalidates it? How else are you going to impugn it?

    Liked by 1 person

  • @T.Inniss June 10, 2018 12:11 PM “he constituition does not allow for Temporary senators?”

    There is no such thing as a temporary senator, just as there is no such thing as a temporary marriage. Whether a marriage lasts for one day and ends by death, or whether it lasts for 50 years and ends in divorce, which the marriage exists it is a legal, valid permanent marriage, and so it is with the senators.

    Liked by 1 person

  • Is there provision for a secondary market in government bonds?

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  • I attended a meeting at which Worrell was trying to sell the benefits of Savings Bonds. While the interest rate was attractive the questions from the audience could be summarized in two parts:
    1) How do we get our money out if needed?
    2) What about devaluation?

    Worrell bristled at the second and said it wasn’t going to happen as the Gov’t knew the “formula” to avoid devaluation. I hope some of that “formulaic” magic has been left behind for the 4 people not including the PM in the Min. of Finance.

    Liked by 1 person

  • Jeff Cumberbatch

    Jeff, we are aware that investors accept the risk of financial loss when making an investment. In the specific case of Government debt, is there an obligation on the part of the Government to use best efforts to prevent investors incurring a loss due to default? Is there a case of gross negligence to be made against a Government that fails to use all remedies to collect its revenues if the failure results in default and a loss to its creditors?

    @ Guest,
    A most engaging question. The government might owe investors a duty of care if the investors were sufficiently proximate ought to have been in its contemplation when it was defaulting on the debt and it would be fair just and reasonable to impose that duty. But we also have to take into account the extent to which investors contributed to their loss by buying government debt in a context where government retained the avenue of default.

    A conclusive answer would require at least a billable 8 hour legal opinion.

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  • Jeff Cumberbatch

    There is no such thing as a temporary senator, just as there is no such thing as a temporary marriage. Whether a marriage lasts for one day and ends by death, or whether it lasts for 50 years and ends in divorce, which the marriage exists it is a legal, valid permanent marriage, and so it is with the senators

    @ SS, Brilliant answer!

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  • Note the bids of 50 cents on the dollar since the Government announcement.

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  • Simple Simon
    June 10, 2018 3:07 PM

    @Hants June 10, 2018 11:52 AM “Is Monique Taitt a member of the DLP? Is Kevin Boyce a member of the DLP?”
    The late cabinet DLP Cabinet Minister Brandford Taitt’s daughter; and former DLPmCabinet Minister John Boyce’s son.
    Methinks the DLP has “bloodlines” too.
    Unless the fruits have fallen real, real far from the father trees.
    Lolll!!!
    ++++++++++++++++++++++

    ie the Bees and Dees are indistinguishable!!

    So you understand why neither would get my vote!!

    Nowadays I find a good place to check a person’s pedigree is to google their names and add “Paradise Papers”!!

    Try it.

    Sometimes you get completely innocent links but it is fun to do!!

    Like

  • Jeff Cumberbatch June 10, 2018 3:25 PM “A conclusive answer would require at least a billable 8 hour legal opinion.”

    Naughty, naughty.

    Like

  • Jeff Cumberbatch

    Ha!

    Like

  • The Government could access information that would allow it to pursue a lot of the money owed to it and really should do so before asking investors to finance its dishonest debtors. Why provide concessions, waivers and the like if you cannot repay your debt?

    Liked by 1 person

  • You cannot claim that because the result does not fit your interpretation of the Constitutional text that it is a nullity. It was conducted in strict compliance with existing electoral law that was valid under the Constitution.Which section of the Constitution invalidates it? How else are you going to impugn it?

    +++++++++++++++++++++++++

    I am not impugning the constitution.

    Nor am I impugning the result save and except to say that since the result cannot produce a Parliament as defined by the constitution, then the result must be a nullity and in need of rectification!!

    Since we can’t amend the result we need to try again!!

    If you apply the First Past the Post result to the 30 seats in a two party system then 30-0 is off course foreseen by the constitution.

    The problem arises when people cannot distinguish between Government and opposition and only think in terms of Dees and Bees.

    The fact that the Bees won 30 seats is irrelevant.

    All that matters is that they can’t constitutionally form a government because there is no opposition.

    No amount of political gimmickry and stunts will change this simple truth.

    You can add any number of parties up to 30 and you will find when you do the math, (permutations and combinations) there are a great deal of outcomes which the constitution forsees.

    Obviously if there were 30 parties each person would be an independent and all those 30 need to do is DIVIDE!!

    If all decide to form the Government then we get the same 30-0 result in the House of Assembly as we have now.

    The constitution will prevent a parliament from being formed the same way as it is doing now.

    It doesn’t say, you can’t form a parliament, it will lay down what you have to do if you want to form a parliament.

    It prescribes (Thou Shalt) vs proscribes (Thou Shall not)

    To claim the Constitution did not foresee this outcome is not logical.

    It did and it does not allow a parliament to be formed for the simple reason that in a parliamentary democracy there must be an opposition!!

    Like

  • “I can’t tek listening to no 29 Bees and Auntie Mia blow a lot of hot air in an unconstitutional house of assembly for 17 hours.”

    I never thought I would see the day when I would thank the constitution and colonialism for anything, no matter the original intent, hence the reason why the overall template of the constitution should not be touched.

    I noticed as of 1974 to last week it has only been amended 15 times since 1966, the last amendment before this was listed as 2007, unless I missed some amendments..but as things stand, the more the era evolves, the more the document can be interpreted to fit any given situation because of the huge holes and unforeseen future when it was being drafted., at least for another 50 years…particularly as it was drafted with the intent to exclude the majority population with it’s discriminatory overtones.

    Like

  • Guest
    I read a lot more into Sandals coming out of their negotiated 40 year tax free concessions by supporting the regional cricket sponsorship similar to what Shell Antilles did years ago.The adverse publicity from the Antigua and Barbados experience appears to have generated an opinion which they hope would force the politicians on the back foot.They know how cricket makes the Region tick.

    Like

  • The Trinidad constitution provides for temporary senatorial appointments,further, theirs’ is a unicameral legislature as I recall.

    Liked by 1 person

  • Jeff,
    Am I wrong in pointing out that the Barbados Constitution does not identify MEMBERS OF PARLIAMENT; HOUSE OF ASSEMBLY AND SENATE BY Parties of Members thereof? We know the parties to which they belong, but I think they contest the election as individuals; and are so identified on the ballot.
    Two, whether a person is a DLPite or not is not pertinent to their senate appointment.
    And while I am at it, I concur with Pedro, and would point out what I consider a number of Anomalies. 1. the President of the Senate is chosen by the members of the senate, and if I remember Senator Cheltenham was “named” as Presidento of the senate by the Prime Minister, before the Senate was even fully constituted, and not in accordance with Section 40.1(Where the Senate first meets after any dissolution of Parliament, and before it proceeds to the dispatch of any other business, it shall elect a Senator, not being a Minister or Parliamentary Secretary, to be President of the Senate;…) The election of a Deputy President also follows election by the Senators. (2)

    Liked by 1 person

  • Jeff,
    Will the Governor General have to revoke the appointments of the last two senators proposed by the Government? As far as I can read there is no provision for “temporary Senators” or time limits on these appointments. How long is it proposed that these two senators serve?

    Like

  • By the way Jeff; (He of the FTC hat wearing crew) Has anyone suggested that attention be paid to the disparity in interest between interest paid to Bank depositors, and those charged by Credit Card issuers? 22%, or more, as against i% or lower on deposits”
    Just Asking.

    Like

  • Bernard Codrington

    @ Alvin at 5:43 PM

    Those who appoint can disappoint. He who recommends can withdraw his recommendation.

    Like

  • Bernard Codrington

    @ Hal

    Re Secondary market for Go B bonds

    Theoretically,yes. You need to find a broker who will attract a fee. And with all this uncertainty one may have to sell at a medium/deep discount.

    Historically Bajans buy assets to hold to maturity. We do not have a culture of speculation.

    Like

  • Jeff Cumberbatch

    To claim the Constitution did not foresee this outcome is not logical.

    It did and it does not allow a parliament to be formed for the simple reason that in a parliamentary democracy there must be an opposition!

    May you be so kind as to refer me to the section of the Constitution that provides that there MUST be an Opposition of more individuals than one? And what would you and Pedro suggest had the DLP won one seat only? Are you aware that the plural includes the singular and vice versa in egal drafting and statutory interpretation?

    The singular includes the plural, and the plural includes the singular. Generally, it’s good drafting practice to use the singular tense, e.g., referring to a child instead of children, a parent instead of parents, or a car or sign instead of cars and signs. … A singular word includes the plural.Aug 21, 2014

    Liked by 1 person

  • Jeff Cumberbatch

    Will the Governor General have to revoke the appointments of the last two senators proposed by the Government? As far as I can read there is no provision for “temporary Senators” or time limits on these appointments. How long is it proposed that these two senators serve? Simple Simon and I have already answered this question-

    SS-There is no such thing as a temporary senator, just as there is no such thing as a temporary marriage. Whether a marriage lasts for one day and ends by death, or whether it lasts for 50 years and ends in divorce, which the marriage exists it is a legal, valid permanent marriage, and so it is with the senators

    JC-.The Constitution makes no express provision for them, but that is not the sane as proscribing them. The two gentlemen are full-fledged senators. That they will eventually resign to make way for others does not make them any less so!

    Liked by 1 person

  • Jeff Cumberbatch

    Has anyone suggested that attention be paid to the disparity in interest between interest paid to Bank depositors, and those charged by Credit Card issuers? 22%, or more, as against i% or lower on deposits”

    @ Alvin, This is a purely matter of contract. The Central Bank regulates banking institutions, The FTC regulates the fairness of the PROCESS of contracting not the RESULT!

    Like

  • Jeff

    Where we agree is this.

    There was an election and a House of Assembly was elected.

    The House nominated a PM

    A cabinet was chosen.

    The GG appointed the PM

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  • And what would you and Pedro suggest had the DLP won one seat only?

    ++++++++++++++++++++++

    Same as if they had won zero, but if and only if no other group opposing the Government which was present in House when it divided who had won one or more seats.

    It is quite possible I think, for there to be two parties each winning one seat and an opposition to be formed.

    Suppose the D’s had won say 5 seats, the S’s scraped 1 and the Bees got 24.

    It is also quite possible for those 6 who oppose the Government to coalesce and the leader of the opposition chosen to be the S.

    In that case the party winning one seat provides the leader of the opposition.

    Would all hell break loose and people say the constitution needs to be amended because we never had a situation like that before?

    Off course not because the constitution foresees all possible combinations of outcomes and parties, once the number of parties does not exceed 30!!

    If you look at the constitution it gives a limit of 24 seats or as many as Parliament decides.

    Parliament decided 30.

    It doesn’t explicitly say that there can be no more parties represented in the house than 30 ….. but it is kind of obvious … not just because I say so!!

    Like

  • Are you aware that the plural includes the singular and vice versa in egal drafting and statutory interpretation?

    +++++++++++++++++++++++

    I would imagine the masculine includes the feminine otherwise we couldn’t have a Dame Sandra, or for that matter, a Dame Nita!!

    Did they have to change the constitution to permit Dame Nita to become the GG?

    I could see the singular including the plural but if the plural is specifically used I would think that is the clincher.

    Tell you what, redraft the phrase Pedro thinks indicates plurality and see if it makes sense and could be interpreted as meaning the plural also.

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  • Jeff,

    Regarding this extract that you quote ”“by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State…””….

    Surely this may be considered to exclude the UK and Canada, as ultimately for each of the three, Barbados, the UK and Canada, the Head of State is the Queen?

    As such, pledging allegiance to the Queen, to become a citizen of either of UK and Canada is not pledging allegiance to a ‘foreign’ power, because the Queen is the Head of State for Barbados.

    Like

  • (2) Whenever the Governor-General has occasion to appoint a Leader of the Opposition he shall appoint the member
    of the House of Assembly who, in his judgment, is best able to command the support of a majority of those members
    who do not support the Government, or if there is no such person, the member of that House who, in his judgment,
    commands the support of the largest single group of such members who are prepared to support one leader.

    ++++++++++++++++++++++++++++++++++++++++++

    Perhaps you can get it done but if you try making it singular it seems like you also have to remove the word majority.

    “a majority of those members” becomes “that member”

    Would this be a proper interpretation to not only make the singular apply and also drop a word?

    If you leave majority, then the opposition would consist of the leader and a minimum of one other member of the house.

    In which case he would command the majority support of a group of 2, himself and one other.

    Actually it would be unanimous support.

    Unanimous would count as a majority, would it not?

    Like

  • Maybe another Bee will decamp and defect to the benches of the opposition to keep Reverend Joe company.

    Like

  • From Wiki ”I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.[11]”

    And ”I, [name], [swear by Almighty God] [do solemnly, sincerely and truly affirm and declare] that, on becoming a British citizen, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs, and successors, according to law.”

    While both the Canadian and British requirements state adherence to their laws as citizens, the underlying and overruling allegiance, clearly stated, is to the Queen. The Head of State for Barbados.

    It can be argued that there is no need for change for that aspect of the Constitution to allow dual nationality with respect to the UK and Canada.

    Like

  • Crusoe … Crusoe ….. Crusoe

    I have already discovered through experience that lawyers exist just to complicate simple matters

    Like

  • Does the constitution allow for a Deputy PM?

    If so, it must allow for a deputy leader of the opposition.

    When you think of it like that Reverend Joe really needs a deputy.

    Like

  • (2) When the Senate first meets after any dissolution of Parliament, it shall, as soon as practicable, elect a Senator, not being a Minister or Parliamentary Secretary, to be Deputy President of the Senate; and whenever the office of Deputy President becomes vacant for any reason other than a dissolution of Parliament, the Senate shall, as soon as convenient, elect another Senator to fill that office.

    ++++++++++++++++++++++

    Did the Senate elect a Deputy on Friday?

    If so who, and if it did, who is the President of the Senate?

    Like

  • Jeff Cumberbatch

    In this Act and in all Acts, regulations and other instru- ments of a public character relating to the Island now in force or hereafter to be made, unless there is something in the subject or context inconsistent with such construction,
    or unless it is therein otherwise expressly providd-*
    ( a ) words importing the masculine gender include females; and
    (b) words in the singular include the plural, and words in the plural include the singular.

    @ Crusoe, interesting point but somehow I do not think that the reference is to the Head of State as much as the Government, The Queen is also head of state in Papua New Guinea, I think, Would a Barbadian dual national there also be excluded?

    Like

  • (b) words in the singular include the plural, and words in the plural include the singular.

    +++++++++++++++++++++++++++++

    We agree, the masculine includes the feminine so for example Santia Bradshaw could just as easily stand in Joe’s shoes.

    I repeat the question Jeff.

    How do you go from a “majority of those members” to a “majority of that member” and make any sense?

    Do we envisage cutting the Reverend Joe in two?

    I am sure he did not sign up for that.

    If the word majority is left out then pandemonium would reign on the benches of the opposition in deciding who should be the leader of the opposition.

    You could argue that pandemonium can’t reign if there is only one member but I can’t find the word pandemonium in the constitution because decisions are made on a simple or 2/3 majority.

    0 is indivisible into a majority and minority

    1 is indivisible into a majority and minority assuming you want a whole member

    2 is the smallest number that is divisible into a majority and a minority except the majority would be unanimous.

    Plurality works.

    At a minimum, that plurality is 2.

    Imagine Reverend Joe resigns or is called home.

    Who replaces the leader of the opposition?

    Yes, there will be a by election to fill the vacant seat but what if that new member was a Bee?

    We would be back in potter, whether Reverend Joe had a companion or not!!

    Like

  • What might work but it would still be contrived, would be for the Bees in parliament to split on the issue of the unconstitutionality issue.

    The Bees do have a natural split, those who are in as first timers and want to qualify for pension after 8 years and the old hands for who that is not an issue.

    How many first timers in the Bees would lose out if an election was called?

    Husbands, Sands, Sutherland, etc etc.

    If there are enough, there could even be a new government.

    That division would still be contrived because it would be for personal gain and not for the reason the opposition is supposed to exist, to be a voice for those 41,000 people who oppose the Government.

    .

    Like

  • @John
    June 10, 2018 8:32 PM

    Lol.

    @Jeff, Along the same lines, yes. I get the point re the focus being government.

    Like

  • @Jeff,

    Forgive me, I was being somewhat mischievous.

    Like

  • Jeff Cumberbatch

    De nada, Crusoe!

    Like

  • Jeff Cumberbatch

    How do you go from a “majority of those members” to a “majority of that member” and make any sense?

    Do we envisage cutting the Reverend Joe in two

    @ John, you are being intentionally obtuse. That the plural includes the singular does not mean that wherever there is a plural word, it has to be grammatically restated in the singular. Rather, it means that the sense must be changed to accommodate the singular. The word majority would thus be otiose in this context. To borrow David’s phrase. “you may have the LAST word!”

    Like

  • Yeah…like in…. a majority of one.

    Tek dah..

    Like

  • @ John, you are being intentionally obtuse. That the plural includes the singular does not mean that wherever there is a plural word, it has to be grammatically restated in the singular. Rather, it means that the sense must be changed to accommodate the singular. The word majority would thus be otiose in this context. To borrow David’s phrase. “you may have the LAST word!”
    +++++++++++++++++++++++++++++++++++++++++++

    Kind of you Jeff!!

    Would just point out that replacing he with she and his with her works with the masculine/feminine aspect.

    Why don’t you try redrafting the clause in the constitution in the singular and show us poor idiotic non lawyers how it is done?

    If you are able to I would love to see the result!!

    Like

  • … and besides, after Reverend Joe was cut in two there would be a problem, … only one seat to fill!!

    So Reverend Joe can breathe easy!!!

    Like

  • SoMe times I wonder if people post on the blog just to be fashionable or for educational purposes
    I view the blog as educational and it is amazing how we spend so much time trying to be full of ourselves and fulminating on mundane issues while on the other hand sweeping serious issues under the carpet
    Here we have up for discussion the view of some persons including eminent Professor Pedro Welch that the appointment of Reverend Atherly as Leader of the Opposition is in breach of the Constitution and we spend time discussing brassbowlery
    Would time not be better spent badgering the Constitutional lawyers to give their opinion on the whether the Governor General erred and if so lobby for an amendment to allow the goodly Reverend to rightfully be seized of the honour bestowed on him

    Like

  • How many first timers in the Bees would lose out if an election was called? Husbands, SANDS, Sutherland, etc etc.
    +++++++++++++++++

    If elections were called Sands would not lose his seat because he is NOT an elected member of parliament.

    John has contributed so much shiite to this topic……….it’s simply amazing!!!

    I have to agree with Charles Skeete re: “Sometimes I wonder if people post on the blog just to be fashionable”……….

    ……….and Jeff Cumberbatch re: “John, you are being INTENTIONALLY OBTUSE.”

    Like

  • Later this year, the world’s top-ranked tennis star will celebrate her 22nd birthday and face a momentous choice: is she Japanese or not?
    Naomi Osaka, the reigning US and Australian Open champion, is a dual-national of Japan and the US — but Japanese law does not allow dual nationality beyond the age of 22.
    The rule has caught out senior politicians in the past and led to a culture of silence about non-Japanese ancestry. With the Tokyo Olympics coming up in 2020, Japan is desperate to have its brightest sporting star represent the national team and bid for a gold medal.
    The dilemma it has forced on Ms Osaka is prompting reflection on Japan’s strict nationality law. Her situation is also fuelling a nascent debate about immigration, mixed-race children and what it means to be Japanese in an ethnically homogeneous nation set for rapid population decline.
    Ms Osaka is the first Japanese player to win a grand slam title. In a sign of the passions her case has aroused, Michio Ushioda, a commentator for the Mainichi newspaper, even claimed that “it could bring down the government if they handle it badly”.
    According to the Ministry of Justice, there are roughly 890,000 Japanese who are expected to choose a nationality, many of them mixed-race.
    Despite the number of births in Japan having fallen from a peak of 2.7m in 1949 to just 921,000 last year, the rules call for some of them to renounce their citizenship.
    “It’s a Meiji-era law that no longer meets the needs of modern society,” said Satoko Takeda, a visiting researcher at the Osaka University of Law and Economics, who works on nationality issues.
    Emperor Meiji ruled from 1868 to 1912. Ms Osaka was born in Japan to a Haitian father and a Japanese mother, then moved to the US at the age of three. She represents Japan in the Fed Cup, the international women’s team tennis competition.
    A spokesperson declined to comment on her choice of nationality but said that, if selected, she hopes to represent Japan at the 2020 Olympics. Maintaining dual nationality is not an offence that carries a penalty for failure to comply in Japan, said Ms Takeda. However, the law requires dual nationals to choose one.
    “The law creates a duty to remove your other citizenship but failing to do so is not a crime,” she said. The authorities do not enforce the law but any time someone over 22 acknowledges another nationality they admit to breaking it.
    The result is to cast children with one Japanese and one foreign parent into a void of uncertainty. Most dual nationals simply keep their other passport quiet and pretend they are solely Japanese. Young dual nationals say the law inhibits discussion of their identity. “I talk about it a lot with my friends who are in similar situations, but you can’t say so publicly,” said Kristen, who has Japanese and American citizenship but did not want her last name used because it would be such a public statement.
    “My parents always told me not to disclose I have more than one nationality.” Such a pretence is hard to maintain in high-profile cases such as Ms Osaka’s.
    Renho Murata, the former leader of the opposition Democratic party, was caught out in 2016 and criticised over whether she had been honest about renouncing the Taiwanese citizenship she inherited from her father.
    “A member of parliament can become a cabinet minister or prime minister who carries out diplomatic duties. It’s not unnatural to limit their nationality,” Shinzo Abe, the prime minister, said at the time.
    “A dual national can’t be a diplomat. In diplomatic negotiations, the national interest of two countries collides.” Nationality is also tied to broader questions of race and identity.
    Having the “right” foreign parentage — American in particular — is often seen as an advantage in Japan, conveying exoticism and language ability, even as it creates a barrier to being regarded as fully Japanese.
    Those with the “wrong” foreign ancestry, such as a Chinese parent, may face discrimination. The word haafu, denoting a half-Japanese person, has both positive and negative connotations.
    “A lot of what I’ve experienced growing up — someone coined the term ‘positive racism’,” said Kristen. “People compliment you but when you unpack it there’s a lot of racism there.”
    The issue is becoming more pressing as Japan considers allowing greater immigration to offset its falling population. Mr Abe has changed the law to make it easier for highly skilled workers to gain permanent residence.
    Japan’s parliament has considered reform of the nationality law for more than a decade without results. The more Ms Osaka wins, the more she will face questions about her nationality. The question for Japan, on the other hand, is whether it can embrace the idea that having dual nationality makes her no less Japanese.

    Like

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