National Liberation Movement
Saint Vincent and the Grenadines
“This country is headed into a major constitutional crisis.” Those were some of the words of the learned John Bayliss Frederick, my late father. Today, the National Liberation Movement (NLM) has read a number of opinions about our Constitution. Are we headed to the first of its kind in the history of our nation state? We are reminded that the supreme law of the land is the Constitution and that parliament is not supreme in our ‘version’ of Westminster style democracy. This is still not a “phantom democratic” state as some would try to persuade us to believe. Since acquiring its independence in 1979, the nation has seen its plethora of autochthonous leaders and leadership styles at the community and national levels. As a former colony of the then Great Britain, our nation continues to rewrite its history.
The NLM continues to advocate for integrity legislation, the reform of the prison and police services and associated legislation as well as legislation on revising the age of consent from fifteen years (15) to eighteen years (18). But of utmost importance is the need for leaders who understand the process of leadership itself. Leaders especially political leaders and those selected to serve are also expected to understand and deliberate on the basic tenets of law and legal advice to the citizenry of this nation. I want to resurrect the words of the late Professor Peter Briton of Guyana from the days of lectures at the University of Guyana where I was formally exposed to legal training.
Professor Peter Britton, S.C., A.A.,** used to say things like, “when you have passed your exams, you have only just begun. You are not yet a lawyer. You will go on to practice and hopefully you become the best in your field. Please do not sit in your towers alone and think that you know it all. Call one of your colleagues from right here or across the region and discuss a matter whenever you are in doubt.” These sentiments were also strongly supported by the Former Chancellor of the Judiciary (Guyana) and our beloved Head of Law Department (University of Guyana) Professor – Aubrey Bishop, O.R., C.C.H., B.Sc, L.L.M.*** I am compelled to mention these Professors simply because I believe that the tissue of fibre in my legal analysis has been implanted by these men whom I deemed excellent legal luminaries. May their souls rest in peace.
As I listened to current arguments (legal and non-legal) and read comments offered in the media with regards to the proposed amendments to the current Constitution of Saint Vincent and the Grenadines, let us be reminded of a few facts. They are:-
- In our country, the Constitution is Supreme. With minor exceptions, Supremacy of our Constitution simply means that it is so written and has; as of law and fact, the effect of limiting Parliament’s power. Parliament does have the power to make laws of course, but it certainly cannot act outside the authority that is granted to it by the Constitution. Herein lies the safeguards specific to issues like fundamental rights and yes, the structure of government/governance is outlined therein, and we shall return to the latter in due course.
- In the UK (which is part of the Commonwealth), Parliament is Sovereign and that means it has unlimited lawmaking powers. It is NOT so here in Saint Vincent and the Grenadines.
- Please note that there are fundamental differences as to who has the final say on legal matters in this country, such as whether it is the judiciary (under the Constitution) or Parliament, and whether laws can be invalidated and what is their ultimate effect.
The teacher in me cannot let this opportunity ‘slip away’ since I must remind us as well as to the following:-
Constitutional Supremacy
Historically, Saint Vincent and the Grenadines evolved as a nation that has been bound by Constitutional Supremacy even though there may have been several divergent views and opinions expressed previously. Given that our country is under Constitutional Supremacy, the Constitution is supreme and NOT parliament. I repeat these statements for emphasis. Therefore, Parliament cannot expressly hold the ultimate legal authority in Saint Vincent and the Grenadines.
When it comes to judicial review, within our constitutional system, our courts can strike down laws that propose, seek to amend and which may conflict with our written constitution. If Parliament was supreme (and it is NOT), then no court can declare a statute invalid.
When it comes to the lawmaking capabilities, since our Constitution is supreme, by its very nature, and substantively so, it is restrictive so that Parliament is constrained by that which it seeks to legislate. If Parliament was supreme here it would allow the legislature to pass any sort of law but Parliament is NOT supreme. Again, this is repeated for emphasis.
Based on the principles that govern amendment procedures, the supremacy of our Constitution dictates such things like special ‘entrenched’ procedures in order for it to be changed. It is not a situation where the Constitution can be amended with a simple majority.
The Constitution binds
The NLM is cognizant of these Constitutional bindings:-
- That the Constitution is supreme so that it will hold supremacy over and above all other laws and any law amended, repealed or else that is inconsistent with the Constitution will be void to the extent of such inconsistencies.
- That Parliament can at times pass laws that may infringe upon our fundamental rights and freedoms enshrined in our Constitution. Yes, we can argue back and forth on recent case law that attested to this very fact. Since our Constitution is Supreme, this document as our enabler outlines procedures whereby we can ‘pursue legal battles’ against what may be presumed (or in fact and law) unlawful, illegal and contrary to public opinion.
- As mentioned briefly earlier, only the Court has the legal authority to pursue judicial review; in so doing, the court will review laws passed by Parliament. The issue here is for the Court to determine whether those laws conform with the Constitution.
- That Parliament has to follow specific voting procedures as to how to alter the Constitution of our country. If there is outlined a two-thirds majority or else, Parliament has to follow through. It is NOT a law making body unto itself and it was never intended to be so according to texts written about constitutional law. Put another way, given that we have a constitutional democracy and the constitution is supreme, “Parliament is not sovereign, but is the supreme law-making body under” or subject to the “Constitution, and is “restrained by its limits.” It is recognised as the key legislative actor but subject to judicial review, and is “accountable for making laws that conform to the entrenched constitutional order.”
Constitutional exceptions and or limitations:-
The NLM hastens to add though, there are exceptions and limitations specific to the said Constitution. Parliament may seek to alter the Constitution but it still has to adhere to the written manner and form (two-third majority and so on).
Additionally, if there are public emergencies, the Constitution outlines in sections 14 – 17 and by the very nature of ‘emergencies’, it is Parliament that may derogate from certain fundamental rights such as declaring a public emergency once it is ‘reasonably justificable’ until the particular situation is handled properly or the emergency no longer exists.
Then, there are ‘saving laws’ so that, such laws that existed prior to independence (prior to the 1979 Constitution), coupled with those that were passed immediately after that time period, were protected from becoming immediately void and voidable. This is even if they were inconsistent with what we now know as new fundamental rights. This is known as a transitionary period and hence, transitional exceptions.
Also, there are limits that are known as ‘reasonably justifiable limits’ so that many of the rights are not absolute and therefore are subject to limitations but these are permitted by the Constitution itself. However, they are only permitted explicitly so, once they are ‘reasonably justifiable’ within our society that is built on principles of democracy.
Structure of governance and section 26 (1) of the Constitution
We turn to the structure of governance and specifically to the intent of Section 26 (1) of the Constitution of Saint Vincent and the Grenadines. That is the issue, the fundamental issue to which we must address our minds. We must ask ourselves whether this substantive matter has to do with ‘narrowing of the seats’ of parliamentarians currently in the house of Parliament. To our minds, the issue MUST be this: from the time of internal / self governance through to a recognisable national independence then to the current constitutional “furor,” whether representatives and senators correctly interpreted the said provision (Sections 25 & 26 (1) of the Constitution (the Supreme law of the land) pre and post independence provisions specific to qualifications and disqualifications of Representatives and Senators. There were amendments to the 1969 Constitution so that in 1979 when the ‘umbilical chord’ was supposed to be cut from Great Britain, the following differences were:-
- An understanding of full political independence, that removed Great Britain as having control over our external affairs and our defense. A Governor – General was now established locally as head of state (a titular title) and the head of our government was now renamed Prime Minister instead of Premier.
- We were no longer labelled “Associated State” but a full sovereign state effective 27 October 1979.
- The composition of 13 elected representatives was brought over from 1969 through to 1979 but that constitution formally introduced 6 Senators who were nominated. Four of them were nominated on the advice of the Prime Minister and the other two were chosen by the Leader of the Opposition. We now have slight changes to the aforementioned with 15 elected representatives. Leadership has always been pivotal to good governance.
- In 1979, the Judicial Committee of Her Majesty’s Privy Council was retained as the final court of appeal. Up to the current time, the Privy Council is still our final court of appeal even though we have the existence of the Caribbean Court of Justice. The Privy Council acts as the final appellate court for us since we have not yet “fully adopted the appellate jurisdiction of the Caribbean Court of Justice.”
- When it comes to citizenship of our country, and more specifically dual citizenship, there is a blurred line according to some critics. They questioned whether the 1979 constitution did not confer or provide for citizenship upon independence, which allowed dual citizenship – a sort of pre-requisite for certain leaders to hold office. The question one must ask is to what extent this can be inferred given the specific disqualifications outlined in Section 26 (1). There was no ambiguity there as far as I am aware.
Leadership
Further, the intent of the crafters and framers of this British/Commonwealth legacy, our Constitution and specifically Section 26 (1) was to place a prohibition, to disqualify individuals from being elected or appointed to the positions of Representative and Senators (leaders) if, they are,
“by virtue of their own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state”.
Basically, those elected and selected members of Parliament owe their undivided loyalty, acknowledgement of allegiance, adherence and obedience ONLY to one nation – Saint Vincent and the Grenadines. That’s it! The court MUST give us an interpretation if, as politicians and citizens alike, we are not sure of this aspect of the Constitution and the value we should, we MUST place on leadership and good governance.
Here’s the thing, voluntary allegiance is pivotal to all this argument and or misinterpretation and interpretation of the Section in question. One would normally take a voluntary action for instance, an oath of citizenship and this would not be accidental or involuntary to their allegiances. But Section 26 is by intent exclusionary. It is and was crafted in ways so as to set specific boundaries on an aspiring leader’s eligibility. There must come a question as to why and surely the answer has always been geared towards the protection of the sovereignty of the legislative branch of government.
Some argue about commonwealth citizenship exceptions but these are subject to what others cite as allegiance to “foreign state”. It boils down to facts and settled law that each commonwealth state is a foreign state to each other although they are within the same grouping labelled ‘Commonwealth’. Let the court decide whether there is any such ambiguity in the meaning of what constitutes “foreign state” and or “foreign power.” The NLM is mindful that Parliament by itself cannot ‘remove’ perceived or actual (if it exists) legal ambiguity that is centuries old and settled law. Its “legal maneuverings” are still subject to the constitution of this country.
To reiterate, St. Vincent and the Grenadines is a Constitutional democracy. Parliament is NOT supreme. It is the Constitution that is foundational to all branches of government: the judiciary, the executive and the legislature. No way can Parliament unilaterally seek to remove any perceived ambiguity they think they may have found in a constitutional provision. Why now? Did this ambiguity exist in the 1979 Constitution? Can Parliament be allowed to do as it pleases? Have previous parliaments committed such acts? If so, why? Definitely, only the judiciary has that authority, that finality in its interpretation of the Constitution. This is done through a judicial review – Marbury v Madison (1803). This is indeed legal/constitutional history in the making here on our island.
Differences between the Constitutions of Saint Kitts (St. Christopher) & Nevis and Saint Vincent and the Grenadines
Of course there are differences as to be expected. Both are independent member nations of the Commonwealth of Nations! In 1983 and 1979 respectively both St. Kitts & Nevis (SKN) and St. Vincent and the Grenadines (SVG) became member nations. The major differences within the Constitutions of these nations are those with regards to eligibility of candidates for their respective elections. In SKN there is a restriction placed on parliamentary candidates to its very own citizens. However, here in SVG Commonwealth citizens can be nominated. But, within both Constitutions, one can read that they contain strict provisions against allegiance to foreign powers. Again, each state/member nation within the Commonwealth is foreign to each other.
What of Citizenship and Parliamentary Qualification
In St. Kitts & Nevis, that Constitution places restrictions on nominations for their National Assembly specific ONLY to citizens of (SKN)St. Christopher and Nevis. If a person is a national and is a dual citizen who has taken a foreign oath, they are definitely excluded. Recall that even though SKN allows for dual citizenship, Section 28(1)(a) of their Constitution, as reflected in 26 (1) (a), individuals are still disqualified from being elected or appointed as members of their National Assembly and our House of Assembly.
On the other hand, here in SVG, our Constitution (Section 25) seems to suggest that there is an extension of nomination for the House of Assembly to Commonwealth citizens who are over 21 years of age. Once they are literate in English and have resided in SVG for at least one year they can do so. However, there is no perceived limitation on eligibility solely to nationals of SVG. Yet all of this is subject to Section 26.
Disqualification of Representatives/Senators from both member nations
It is of the truth that both countries have this provision on Foreign Allegiance. Both constitutions contain sections on disqualification of individuals who “by their own act” sworn allegiance, obedience, or adherence to a “foreign power or state”.
Is there a difference in interpretation of these provisions on Disqualification of Representatives/Senators?
Herein lies the question as to what really constitutes Disqualification of Representatives/Senators in SVG. The NLM awaits the ruling from the Courts. In addition to several ongoing debates, Commonwealth citizenship is allowed for candidacy by virtue of automatic historical, legal and constitutional legacies, so that Vincentians are Commonwealth citizens. Does this sound like a moot point? Unlike SKN, though, there was no known amendment made to eligibility on candidacy to our national elections in SVG. Didn’t we accept ‘whole sale’ the notion that there was no indivisibility between Commonwealth citizens and being Vincentian citizens? If on the other hand, one holds a non-Vincentian passport and or swears an oath to another country (e.g., Canada, Trinidad and Tobago or Nigeria – all member nations of the Commonwealth of Nations), shouldn’t this be interpreted as an act of allegiance to a “foreign power” given the reading of Section 26? Why are there legal debates regarding what constitutes “passive” dual citizenship? The NLM awaits the ruling from the Courts.
On this point, in SKN, wasn’t there precedent when it was ruled that if one holds a diplomatic passport for another country, minus taking an oath of allegiance, that this did not disqualify a member automatically?
Therefore, let us hear the conclusion of the whole matter. Introduction of an amendment to have retroactive effect, such amendment to Section 26(1) of the St. Vincent and the Grenadines Constitution is quite alarming! If it seeks to protect parliamentary members from “disqualification due to foreign allegiance, specifically aiming to override pending election petitions regarding dual citizenship”, this must be rejected by every citizen of this country. Why? The NLM reiterates that if this proposed retroactive amendment to Section 26 (1) is successful, it will set a dangerous precedent if Parliament is allowed to “get away with this” jurisprudential anomaly. If the intent is to make such a retroactive amendment “apply from the 1979 Constitution’s start” this is unprecedented in the history of our nation. The NLM stands firmly with those who continue to raise their voices as we scrutinise this move as a “potential abuse of power designed to alter the legal outcome of ongoing court cases” and to rewrite our constitutional and electoral history.
Why an amendment at this time to have a retroactive effect? Why would the governing New Democratic Party (NDP) propose such an amendment so that it excludes “allegiance to Commonwealth countries”? Will this new proposed legal tactic in legal jurisprudence be allowed and if so, would it take effect retrospectively to cover past elections?” Should this re-writing of the law be a sort of benefit to those who once were in breach or violation of the Constitution of Saint Vincent and the Grenadines?
My father once said this to me as well, “before any reading of legal jargon, one must take a commonsense approach towards the law.” Remember that this provision (Section 26 1 (a) was designed to ensure that those charged with lawmaking in St. Vincent and the Grenadines must remain, during their tenure of office as – Representatives and Senators, entirely committed to the interests of this our beloved country.
**Professor Peter Britton, S.C., A.A., (1989 – 2009) was among distinguished Guyanese legal luminaries. He was a most beloved Professor of Law of the University of Guyana.
***Professor Aubrey Bishop (1931–2013) was a distinguished Guyanese jurist, former Chancellor of the Judiciary (1996), and a professor of law and Head of Department of law at the University of Guyana.