Introduction
Section 25 of the Constitution provides the requirements that should be satisfied by a commonwealth citizen who wishes to be qualified to be elected as a Representative. The commonwealth citizen must be twenty-one years of age, resided in St Vincent and the Grenadines for 12 months before the day of nomination and is able to speak the English language satisfactorily. Before the commonwealth citizen can be assured that he or she is qualified under section 25 that citizen must first surpass a litmus test prescribed by section 26 of the Constitution to avoid being disqualified. Section 25 starts by saying subject to the provisions of section 26, which makes it advisable to review section 26 before focusing on the requirements of section 25. The litmus test requires that any person who wishes to contest the elections must NOT by virtue of his own act is under any acknowledgement of allegiance, adherence or obedience to a foreign state or power. A commonwealth citizen who does not pass the litmus test will no longer consider section 25 to be relevant. The issue that seems to torment the minds of those interested in this looming constitutional crisis, is, whether relative to St. Vincent and the Grenadines a member state of the commonwealth is a foreign power or state. I will argue that, under the Constitution a member of the commonwealth is a foreign power or state but before I do, I wish to briefly respond to Dr Jason Haynes’ article seeking to address some of the issues that I raised in my previous article.
Before I proceed, I must express that it is most unfortunate that Dr Haynes totally misread the thrust and pith of my article and, as a consequence, conducted a fallacious assessment on what he sadly and mistakenly considered was the fallacy of my arguments in the previous article. Suffice it to say that the pith of my article was the interpretation of section 26 but Dr Haynes seemed to have focused his analysis on section 25 which means that he would have missed some very valid and vital points. In my article I focused on the exclusionary effect of section 26 whilst Dr. Haynes focused on the qualification requirements of section 25. I will address our points of departure as I continue my analysis of the issues that appear to be problematic.
For the purposes of the issue under review the litmus test that a commonwealth citizen must satisfy is, being able to demonstrate that by virtue of his or her own act he or she is not under any acknowledgement of allegiance, adherence or obedience to a foreign power or state. Dr Haynes repeated the cases that I mentioned in my previous article, namely, Attorney General of St. Kitts v Douglas, Spencer v Haywood, Sue v Hill. In my previous article I raised those cases under the rubric Acknowledgment of allegiance etc, for the purpose of showing that the jurisprudence seems to be at one in those cases on the issue of acknowledgement of allegiance and primarily so because the respective legislations are similarly drafted with the identical import. Unfortunately, Dr Haynes applied my reasoning to the requirements of section 25. This is what he wrote, “the key difference between St. Vincent and the Grenadines’ and St. Christopher and Nevis’ constitutions lies in the fact that the latter restricts nominations of candidates to be elected to serve in the national assembly to citizens of St. Christopher and Nevis. It does not contemplate citizens from Commonwealth countries being nominated for election to the national assembly. Section 26 of the Constitution does not mention citizens from commonwealth countries. Dr. Haynes’ argument is focused on section 25 whereas my argument was focused on section 26 which is pari materia with the relevant provision in the St. Kitts legislation. For example, section 26 provides as follows; (1) No person shall be qualified to be elected or appointed as a Representative or Senator (hereinafter in this section referred to as a member) if he is by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state…” The relevant St. Kitts legislation provides as follows; “Section 28. (1) A person shall not be qualified to be elected or appointed as a member if he or she: (a) is, by virtue of his or her own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state. Dr. Haynes also mentioned that;
“The key difference between St. Vincent and the Grenadines’ and St. Christopher and Nevis’ constitutions lies in the fact that the latter restricts nominations of candidates to be elected to serve in the national assembly to citizens of St. Christopher and Nevis. It does not contemplate citizens from Commonwealth countries being nominated for election to the national assembly. “Again Dr. Haynes is missing the point. My article was primarily about the interpretation of section 26 of the constitution and not section 25. Dr. Haynes is focusing on section 25.
“It would be an absurdity for the constitution to allow a person to run for office by virtue of being a Commonwealth citizen while at the same time treating them as citizens of a “foreign power or state” and thus precluding them from running for office. This would be tantamount to giving with one hand and taking it away with the other.”
The absurdity to which Dr. Haynes refers has not been explained in his article. What are the words of the legislation that you consider giving rise to the absurdity and why? I do not wish to guess what is in your mind, but I will try to address your concerns and clarify any doubts.
Lastly, Dr. Haynes concluded that; My central argument is that our constitution explicitly permits Commonwealth citizens to contest elections under section 25, making it absurd to simultaneously disqualify them as citizens of “foreign powers or states” under section 26. To do so would be tantamount to saying that Vincentians are permitted to run for office under section 25, but by virtue of their Vincentian citizenship are prohibited from running for office under section 26
There is something gravely amiss with that conclusion. I do not intend to further analyse the obvious conundrum. What I would say, however, is that the only way that a Vincentian can be excluded from contesting the elections is if, he or she is by virtue of his or her own act under an acknowledgment of allegiance, adherence or obedience to a foreign power or state. Due to the fact that I have been provided with a fallacious analysis to my previous article and with no alternative ideas or positions from Dr. Haynes that will encourage me to further respond, I am left with no other choice than to continue explaining and providing the reasons for my conclusions. Perhaps further elucidation of the issues may result in a much greater appreciation of the implications that are pertinent to this looming constitutional crisis. I, nonetheless, welcome the efforts of Dr. Haynes.
Commonwealth Citizen Revisited
Let us first look at who is a commonwealth citizen. Pursuant to our Commonwealth Act a commonwealth citizen is a person who is a citizen of one of the countries that is enumerated on the schedule to that act. That schedule includes Canada. So we are in agreement that a citizen of Canada is a commonwealth citizen. I think that it is safe to say that most Vincentians are not citizens of Canada, but they are commonwealth citizens. A citizen of St Vincent and the Grenadines is a commonwealth citizen, but a citizen of another commonwealth country is not necessarily a citizen of St. Vincent and the Grenadines. Section 93(2)(b) of the Constitution provides that for a commonwealth citizen to become a citizen of St. Vincent and the Grenadines he or she must have resided in St Vincent and the Grenadines for seven years, before submitting an application to be registered as a citizen of St Vincent and the Grenadines. This raises the question, why does a commonwealth citizen have to apply to the authorities in St Vincent and the Grenadines to be registered as a citizen of St Vincent and Grenadines? The simple answer is that it is because that commonwealth citizen is from another commonwealth country other than St Vincent and the Grenadines. This fits comfortably into the definition of foreign which we shall be considering shortly.
The drafters of the constitution have made it abundantly clear that a commonwealth citizen is not automatically a citizen of St Vincent and the Grenadines but that did not preclude a commonwealth citizen from being considered to become a representative. Therefore, even if a commonwealth citizen is not a citizen of St Vincent and the Grenadines, by virtue of section 25 of the Constitution, that person is still recognized as someone who may be eligible to contest the elections in St Vincent and the Grenadines. But will that commonwealth citizen be disqualified under section 26 if he is, in some way aligned to a foreign power or state?
Black’ Law dictionary defines foreign as, of or relating to another country and also of or relating to another jurisdiction. It also defines foreigner as a citizen of another country. Hence, no matter how a group of people are categorized under the Constitution, once a person is not a citizen of St Vincent and the Grenadines that person is a foreigner. St Vincent and the Grenadines is an independent state no matter whether it is grouped as a commonwealth country or a state in the Organisation of Eastern Caribbean State or a member of CARICOM. Any of those states in those grouping is a foreign state in relation to St Vincent and the Grenadines. Unless it can be established that St Vincent and the Grenadines is under the jurisdiction of another country, then every other country is foreign to St Vincent and the Grenadines. We cannot call ourselves Canadians, or Barbadians or Trinidadians for the very reason that we are Vincentians. Although we are referred to as West Indians that does not mean that the countries that comprise the West Indies are not foreign to each other.
Section 95 of the Constitution provides that alien means “a person who is not a Commonwealth citizen, a British protected person or a citizen of the Republic of Ireland;” It is also instructive to note the difference in the wording of the term alien which was provided in the Interpretation and General Provision Act which states that “alien” means a person who is neither— (a) a citizen of Saint Vincent and the Grenadines; (b) a Commonwealth citizen; nor (c) a citizen of the Republic of Ireland; Section105 (15) of the Constitution provides that “The Interpretation Act, 1978, shall apply, with the necessary adaptations, for the purpose of interpreting this Constitution and otherwise in relation thereto … The definition of “alien” given by the Interpretation and General Provision Act has made it abundantly clear that there is a distinction between a citizen of St. Vincent and the Grenadines and a Commonwealth citizen. That distinction was further emphasized in section 105(1) of the Constitution where it provides that citizen… “means a citizen of Saint Vincent and the Grenadines and “citizenship” shall be construed accordingly and that Commonwealth citizen has such meaning as Parliament may prescribe. Before going further let us try to ascertain what parliament prescribed as a commonwealth citizen. Section 12 of the Second Schedule of the Constitution provides that “Until such time as Parliament otherwise prescribes, the expression “Commonwealth citizen” shall have the meaning assigned to it by the British Nationality Act, 1948, or any Act of the Parliament of the United Kingdom altering that Act.” The British Nationality Act of 1948 was altered by the British Nationality Act of 1981. The definition given to commonwealth citizens in that Act is that …every person under any enactment for the time being in force in any country mentioned in schedule 3 is a citizen of that country, shall have the status of a commonwealth citizen. Schedule 3 listed the countries that are members of the commonwealth. The Interpretation and General Provision Act provides that “Commonwealth citizen” means a person— (a) who under any written law for the time being in force in any country specified in the Schedule to the Commonwealth Countries Act, is a citizen of that country; The schedule listed commonwealth member countries in which Canada is included. Hence, a citizen of Canada and a citizen of St Vincent and the Grenadines are referred to as commonwealth citizens.
Being termed a commonwealth citizen does not mean that such a person is a citizen of every commonwealth country of which there are 56 member countries. The Interpretation and General Provision Act has stipulated that the citizenship of the person must be prescribed by the law in force in the countries specified in the schedule. This is similar to the provisions in the British Nationality Act of 1981. The conclusion that is drawn from those pieces of legislation is that a citizen of St Vincent and the Grenadines is a commonwealth citizen, but a commonwealth citizen may not be a citizen of St Vincent and the Grenadines. That is evidenced by the provisions of Section 93(2)(b) of the Constitution which requires a commonwealth citizen to reside in St Vincent and the Grenadines for a period of seven years prior to applying to become a citizen of St. Vincent and the Grenadines by registration. Section 93(2)(b) is most instructive. It shows that a commonwealth citizen who is not a citizen of St Vincent and the Grenadines is a citizen of another country.
For the purposes of section 25 of the Constitution, a citizen of another country in the commonwealth is required to spend 12 months residing in St Vincent and the Grenadines, as a step towards being qualified to contest elections in St Vincent and the Grenadines. This raises the question, on its own, does section 25 qualify a commonwealth citizen to contest the election in St Vincent and the Grenadines? The simple answer is no because section 26 mandates that other requirements must be satisfied. Being a citizen of another country and with just 12 months of residency does not create any form of commitment or loyalty to St Vincent and the Grenadines, especially in circumstances where the commonwealth citizen is, by virtue of his own act, under an acknowledgment of allegiance, adherence or obedience to the commonwealth country in which he is a citizen. This is where section 26 is very pivotal. So, we ask the question what is the purpose of section 26?
The authorities are unified and harmonious in their conclusion that the purpose of section 26 or similarly drafted legislation in other countries, is to ensure that the person seeking to become a representative does not have split loyalties. It is the fear of compromising the independence of the decision-making process that elevated section 26 above section 25. Hence, a person seeking political office is required to pass the test created in section 26 before he can be considered to be qualified to be a representative under section 25. Earlier on in this article mention was made of the word alien to distinguish commonwealth citizens from citizens of countries outside of the commonwealth. Under the constitution, foreign has not been expressly stated as a status. The literal meaning of foreign is any country other than the country in which a person is located. Whereas the status of a commonwealth citizen is classified as a grouping of people who are accorded special privileges by virtue of being a citizen of a commonwealth state, aliens are also classified as a group of people that are not accorded those same rights and privileges. That has nothing to do with whether or not a country is or is not foreign. To interpret it in that way will be ludicrous especially when consideration is given to what is or is not a foreign state for the purposes of section 26.
If that interpretation made sense, why then section 93(2)(b) of the Constitution requires a commonwealth citizen to reside in St Vincent and the Grenadines for seven years before applying to be registered as a citizen of St Vincent and the Grenadines. If that commonwealth country was not a foreign country, then there would be no need for a commonwealth citizen to apply to become a citizen of St Vincent and the Grenadines. The trouble that Dr. Haynes is having is his reluctance to separate a citizen of a state from the state qua state. A Canadian who wishes to become a citizen of St Vincent and the Grenadines must satisfy the requirements of section 93(2)(b) of the Constitution before he or she can become a citizen of St Vincent and the Grenadines. That is a clear and unequivocal statement that Canada is indeed a foreign state. As I stated in my previous article the word foreign is used three times in the Constitution and the manner in which it was used was to demonstrate that it could not have meant anything else but another country. For example, Section 17 of the Constitution provides that; (1) The Governor-General may, by proclamation which shall be published in the Official Gazette, declare that a state of emergency exists for the purposes of this Chapter. (2) A proclamation under this section shall not be effective unless it contains a declaration that the Governor-General is satisfied— (a) that a public emergency has arisen as a result of the imminence of a state of war between Saint Vincent and the Grenadines and a foreign state…” The Constitution did not define state, but it is obvious that it could only mean another country other than St Vincent and the Grenadines. India and Pakistan are members of the commonwealth, but they have been at war with each other.
If St Vincent and the Grenadines is at war with a member country of the commonwealth, section 17 of the constitution will apply, and the commonwealth country will be referred to as a foreign state. Section 91(a) of the Constitution also states as follows; Provided that a person shall not become a citizen by virtue of this section if at the time of this birth— (a) neither of his parents is a citizen of Saint Vincent and the Grenadines and his father or mother possess such immunity from suit and legal process as is accorded to the envoy of a foreign sovereign power accredited to Saint Vincent and the Grenadines; Again by using the term foreign sovereign power the Constitution is referring to another power other than that of St Vincent and the Grenadines. Lastly, section 26 of the Constitution which provides that (1) No person shall be qualified to be elected or appointed as a Representative or Senator (hereinafter in this section referred to as a “member”) if he— (a) is by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state; In none of the provisions where the word foreign is used can it be said that to interpret foreign as a country other than St Vincent and the Grenadines will create an absurdity.
Can it be said that to define foreign as a country other than St. Vincent and the Grenadines and apply that definition to the word foreign in the three sections of the Constitution to be extremely unreasonable, illogical, or contrary to common sense and what the legislators may have intended? I think not. Hence, the literal meaning should be applied since the natural and ordinary meaning of the word foreign does not create an absurdity. What is also strikingly important are the laws of Canada which provide that countries like St Vincent and the Grenadines are foreign countries. I do not think that anyone will want it much clearer. Security of Information Act (R.S.C 1985) (Canada) Section 2(1)(Interpretation) defines: foreigner means (a) the government of a foreign state, (b) an entity exercising or purporting to exercise the functions of a government in relation to a territory outside Canada regardless of whether Canada recognizes the territory as a state or the authority of that entity over the territory or (c) a political faction or party operating within a foreign state whose stated purpose is to assume the role of government of a foreign state. Foreign state is further defined as (a) a state other than Canada (b)a province, state or other political subdivision of a state other than Canada…
There are two important issues to note about the word alien. The first is that no other reference is made to the word alien in the constitution, except to put an alien on the same footing as every other person over twenty-one years of age who is required to take an oath of allegiance upon application for registration as a citizen of St Vincent and the Grenadines. Secondly, the word ‘alien” makes reference to persons which can either be an individual or an entity (e.g. a company). It does not refer to a foreign country and, unlike what Dr Jason Haynes has done, it requires no inference to be drawn to arrive at that conclusion. Dr Haynes inferred that because alien does not include commonwealth citizens, by extension alien does not include commonwealth countries and therefore a commonwealth country in relation to St Vincent and the Grenadines is not a foreign power or state. The fallacy of that argument lies in Dr. Haynes failure to recognize that the word alien only refers to persons and not to states. A person who is not classified as an alien can nonetheless be a citizen of a foreign state. The word alien in the constitution seems to suggest that if a person is not a commonwealth citizen, British protected person or a citizen of the Republic of Ireland that person is an alien without more. That is the extent of the definition of an alien. It does not require any further inference to be drawn to determine whether a person is foreign or not. If on the other hand the word alien was used without a definition being given, then one could have consulted the dictionary to ascertain the meaning of alien. It was mentioned in the foregoing that apart from the definition, the word alien was mentioned once in the Constitution and, even then, an alien was put on the same footing as commonwealth citizens and British protected persons. The word foreign was mentioned three times in the Constitution but no definition was provided. In those circumstances the court is likely to apply the literal rule to determine whether the ordinary and natural meaning of the word foreign will create an absurdity. In my previous article I mentioned that, although alien can sometimes be confused with foreign, alien simply signifies who is not a citizen of a country. On the other hand, foreign can also mean a different country. Alien in our constitution refers to persons not to states. There is no definition given to states in the Constitution, therefore the natural and ordinary meaning should be considered first. Why have I come to that conclusion?
Issues under consideration
It is not advisable to approach the looming constitutional crises solely as an academic exercise devoid of the practical application of the law. It is not a pronouncement of law in its normative sense. It is about the law in action. It is about understanding the scope of the ratio decidendi (the rule of law on which a judicial decision is based) and not merely a nick picking adventure in order to arrive at a conclusion that satisfies a desired end. Narrowing the scope of the review to the word commonwealth citizen and ignoring the wider purpose of the provision is an oversimplification of the law in action. The wording of a piece of legislation of different states does not have to be precise or exact for a court of law to interpret them as being pari materia (where two or more statutes on the same subject are similarly interpreted to create consistency and avoid contradictions) with each other. For that reason, in my previous article, I focused on the interpretation of section 26 of the Constitution which deals with the disqualification of persons wishing to become elected representatives and/or Senators. But Dr Haynes completely misunderstood the basis of my argument and applied those cases to the interpretation of section 25 of the Constitution which deals with the qualification of persons who wish to become elected representatives and senators. My argument was not about whether a commonwealth citizen is qualified to be a representative or Senator. Instead, it was about whether a commonwealth citizen, by his own act is under an acknowledgment of allegiance, adherence or obedience to a foreign power or state. In that regard I stated that “Several cases in the English-speaking Caribbean have decided or mentioned that acquiring citizenship of a foreign state disqualifies a person from holding a seat in parliament.” I later expressed the view that “The prevailing jurisprudence seems to be somewhat settled that by swearing an oath to become a citizen of another state amounts to being under an acknowledgment of allegiance, adherence or obedience to a foreign state or power. Dr. Haynes did not address my position in that regard, and I presume that he did not because he was focused on Section 25 as opposed to section 26. I reiterate that the law relating to the interpretation of section 26 seems to be settled since there is harmony in the interpretation of that section in the cases that I mentioned in my article.
To presume, draw inferences or attempt to wiggle out of the plain meaning of a word as a means of distinguishing the law can be problematic in situations where the facts are similar. The Caribbean countries have looked to the Australian jurisprudence on the issue of acknowledgment of allegiance as a pillar upon which a foundation has been built to accommodate their own legal environment and develop their own jurisprudence. The purposive approach to interpretating a legislation is pivotal where the literal meaning leads to an absurdity. Such a purpose has already been reviewed and distilled by our capable judges at the Court of Appeal. The courts in the Caribbean, by their judgments, have already telegraphed their own views on the issue of dual citizenship. It seems clear to me that the wording of section 26 can only create some doubt if efforts are made to impose other words to accommodate an interpretation that undermines the purpose of that section which is reflective of the intention of parliament. If parliament intended that section 26 should not apply to a commonwealth country, then it would or should have made that position clear in the Constitution. The phrase commonwealth citizen was mentioned twelve times in the constitution and the word commonwealth was mentioned about eight times. At no time in the Constitution was it expressed or implied that a commonwealth country other than St. Vincent and the Grendines is not a foreign state. As a matter of fact, section 93(2)(b) of the Constitution has, by implication, demonstrated that a commonwealth country other than St. Vincent and the Grenadines is a foreign state by mandating that commonwealth citizens who are not citizens of St Vincent and the Grenadines must reside in St. Vincent and the Grenadines for seven years before being eligible to apply to become a citizen of St. Vincent and the Grenadines.
What this means is that such a commonwealth citizen is a citizen of a foreign state. There is nothing in the legislation to influence anyone to depart from that literal meaning of the phrase foreign power or state. A commonwealth citizen, who is not a citizen of St Vincent and the Grenadines is a citizen of a foreign country. The commonwealth is just a grouping of states which are tied together, not by a single binding body of law but by just a voluntary association of independent states held together by democratic principles, similar culture, language and a common colonial master. Being independent means that each state will be foreign to each other because they govern themselves, they have a defined territory and a people who are their subjects. In essence, they have their own jurisdictions. Therefore, they are foreign to each other which means that St Vincent and the Grenadines and Canada are foreign countries to each other. That is without doubt. The drafters of the constitution did not expressly or by implication indicate that St Vincent and the Grenadines and Canada are the same country. As a matter of fact, there are bilateral treaties between St Vincent and the Grenadines and Canada and both Canada and St Vincent and the Grenadines have signed multilateral treaties that are deposited at the United Nations under Article 102 of the United Nations Charter. States are primarily the creators of and signatories to treaties. The laws of St Vincent and the Grenadines determine who are Vincentians and the Laws of Canada determine who is a Canadian. The laws of St Vincent and the Grenadines do not and will not have the jurisdiction to determine who are Canadians and neither do the laws of Canada have the authority to determine who should be citizens of St Vincent and the Grenadines.
The commonwealth does not have international legal personality. It cannot sign nor ratify treaties. Those powers are in the hands of the respective individual sovereign states. On that basis, the commonwealth cannot be interpreted to mean a state. There does not appear to be any basis to draw any inference that a commonwealth citizen who is not a citizen of St Vincent and the Grenadines is not a citizen of a foreign state. Anyone who is interested in becoming qualified to be a Representative or Senator must first and foremost ensure that he or she is not, by his or her own act, under an acknowledgment of allegiance, adherence or obedience to the state in which he or she is a citizen. The practical application of the law abhors semantics and embraces its purpose. It drives me to proffer the question, can anyone in their wildest imagination classify Canada and St Vincent and the Grenadines to be the same state just because they are both in the commonwealth? To answer yes to that question will be absurd, since it will undermine the very fabric and notion of sovereignty and independence. Being part of the commonwealth does not strip its members of their sovereign status. They are still separate and autonomous sovereign states. For those reasons and those raised and argued in my previous article, foreign power or state as mentioned in Section 26 of the Constitution, includes any state other than St Vincent and the Grenadines, irrespective of whether it is in groupings such as the United Nations, CARICOM, the Organisation of Eastern Caribbean States or the Commonwealth of Nations.
Conclusion
I am of the view that the phrase foreign power or state in section 26 of the Constitution should be given its natural and ordinary meaning. It must, however, be mentioned at this stage that, in order to establish whether section 26 applies, the court will be required to gain expert evidence from a witness on the implications of the foreign law. I have already given you a brief excerpt of the relevant Canadian law. I leave the rest to your imagination and intellect. In the meantime, the constitutional crisis looms large because judging from the conduct of the ULP, it seems clear that a constitutional challenge is imminent.
