Having written on the matter of s. 25 and s. 26 Constitution of St. Vincent and the Grenadines, I find it rather fascinating to re-examine the words of “a de jure allegiance to a foreign power or state.” I teased at the phrase deliberately, previously. I assumed that it was not necessary at that time to elaborate on “de jure allegiance”. My late father John Bayliss Frederick had me do a complete research on this very matter about four years ago. At the time, I was reluctant, yes, very reluctant to be researching every single word. I complained. I spoke of the length of time I had to review and re-read the meanings of “a;” “de;” “jure;” and “allegiance.”
Daddy spoke at length about the study of law and the years that I will have to take to understand legal language. He spoke of the many years that he had to do the same and the value of legal research, understanding and what was written and why it was written. I am in a pensive mood these days especially in these critical stages of our nation’s development. As such, I return to the case of AG St. Christopher and Nevis v Dr. Denzil Douglas (2020). It is not the only case that I have read with regards to getting a grasp of this matter of “de jure allegiance.” My father made sure that I reported to him on my progress. Now, I understand a little bit more about legal research. One cannot accept words at face value when it comes to understanding the meaning behind those legal words, especially the constitutions of post colonial entities like St. Vincent and the Grenadines.
However, Douglas’s case is germane to the ongoing discussions. I must of necessity return to this matter of s. 25 and s. 26 of the Constitution of St. Vincent and the Grenadines. Whether this should be settled in court has to be a matter in the interest of clarity of thought for all of us. Our people should not continue to be unsure of what these provisions mean nor should they make decisions on matters that may open the floodgates to allow for other arbitrary issues. We must be sure and if in doubt, we ask the court to interpret the matter. This is profound in every sense. The constitution is the supreme law of the land.
Even as I write, I am hearing my father’s voice. “Take that dictionary from the book shelf and look up the word, “de jure”. I didn’t doubt him when he said it was Latin in origin. I mumbled something under my breath about what Latin has to do with the law and that produced another hour of lecture. As time progressed, I found out soon enough during those five or so years prior to his death, just how important the study of Latin was to the law and legal reasoning. I came to the understanding that this legal phenomenon of Latin and law is pivotal to a greater appreciation of legal jurisprudence in more modern times.
This experience of referring to Latin words taught me that the study of Latin is connected to law through historical Roman law. I am first and foremost a student of history and reading comes second nature to getting a grasp of all things legal. There was continuity in usage in legal terminology, maxims, and concepts. These provided a common language for legal systems globally. The British have to be commended for the preservation and usage of terminologies that lend themselves to a greater appreciation of UK law. It is the precision, legal traditions, and historical legacies of Latin that are to be credited as to their significance as part of current and relevant legal practice and education. This study is critical although Latin is no longer spoken as a language in many nation states. I am still learning daily. What I found among those old almost moth eaten thesauri and dictionaries belonging to my father, ‘coloured’ my own legal thinking about life issues. Pertinent to the constitution, I found the following so that:-
“In law, “de jure” means something that exists “by law” or “by right,” and is officially recognized by law, regardless of the reality on the ground.” In other words, there is that sense of inherent legitimacy and its defined role in statutes, constitutions or other formalised legal norms. The word/words “de jure” is/are legal concepts that speak specifically to what occurs according to the law. Let us for reasoning’s sake, say, when it comes to leadership, “a de jure” leader for instance is one that has the legal right to authority over a particular jurisdiction and a de jure leader exercises such authority according to law.
De Jure allegiance: application
We return again to the context of Douglas’s case: the judgment from Perriera, CJ are and were carefully read again.
“Requirement (i) – A de jure allegiance to a foreign power or state” appears to be a criterion or condition from a specific legal or constitutional document, likely to be related to rules of eligibility for public office or citizenship within the context of the constitution of St. Vincent and the Grenadines as well as other constitutions that may be found within former colonies of Great Britain. Such a concept of “de jure allegiance” could only mean,, “having an allegiance that is legally recognized by law or formally established by law and a right to exercise such allegiance.” Put another way, the phrase would point us in the direction of reference to that legal tie or obligation a particular person would acquire or have towards a foreign sovereign state or power. Such “de jure allegiance” would arise from being a citizen or subject of that particular state under its laws.
While it is true that one does not need a passport to be recognised as a citizen, it is imperative that if one pledges such by virtue of his/her own act, this throws the citizen into the realm of the question which confronts us. Could pledging allegiance to a foreign sovereign state remove one’s right to be qualified as a Representative or Senator? Why? Is this really the case?
But, upon closer analysis of the constitutional provision, it stands to reason that in the context of the post colonial ‘commonwealth’ constitutions like that of St.Vincent and the Grenadines and based on the guidance in the Douglas’s case, a person who is a subject or citizen of a foreign state or power is, by law, considered to owe “de jure allegiance” to a foreign state or power. St. Vincent and the Grenadines is a foreign sovereign state which belongs to the grouping of the Commonwealth nation states, the OECS and CARICOM to name a few of those groupings. One cannot avoid this, and that is, there remains a disqualifying factor, whether we like it or not, if one wishes to serve in the House of Parliament. Section 26(1) of the Vincentian Constitution still speaks.
Justification
We return to the judgment of Pereira, CJ in the Douglas’s case (2020):
“Requirement (i) – A de jure (by law or by right) allegiance to a foreign power or state,
“That the Commonwealth of Dominica is a foreign power or state is not in issue in this appeal, though the point was taken in the court below. It is clear, in any event, that Dominica is a foreign state for the purposes of the Constitution, notwithstanding the fact that Dominica is a member of the Organisation of Eastern Caribbean States, the Caribbean Community and the Commonwealth of Nations. As the learned judge found:
[21] The Constitution of Saint Kitts and Nevis declares in Chapter 1 that it is a sovereign democratic state. Both St. Kitts and Nevis and Dominica are vested with independent international legal personalities. They have 16 separate and distinct laws relating to citizenship and its citizens owe different allegiances. Their respective exercise of sovereignty is completely independent of each other.
[22] The fact that for the limited purposes of the Citizenship Act, Dominica is not regarded as a foreign country does nothing to attenuate or negate its status as a sovereign, independent state and thus a foreign power or state within the meaning of section 28(1)(a).”
It seems to me that this legal argument ‘sits’ within circular reasoning. One begins and ends with the truth of the whole. A disqualification exists. Therefore, “a de jure allegiance” is one that is of right or by law. Put another way, any individual seeking the office of Representative or Senator is deemed to be disqualified if:-
- by virtue of his own act, (that individual applies and signs a document without force or manipulation) – he/she does so knowingly and with full knowledge as to what he/she is doing and will do…
- under any acknowledgement of allegiance, (that person who signed the particular document to obtain citizenship of a particular country and was issued a passport indicative of such citizenship, is under a “de jure allegiance” to that state that issued such a passport. Such allegiance is not just presumed but is in actual fact, a de jure allegiance or an allegiance by right or by law. In other words the person with that passport as proof of citizenship has a right of allegiance(and acknowledgement and obedience) to that state that issued the passport. Also, according to the law of that particular land, the person obtained such a right and it is by law so that a legal obligation arises upon him or her to submit to the citizenship laws and all other laws of the land in which he/she is now a citizen.
- To fulfill the last aspect of such a “de jure allegiance,” that individual agrees to be a citizen of that particular state and to render obedience or adherence to such a foreign power or state. That agreement is occurring as of right and by law. That agreement is reflecting and will continue to be reflected in the passport so that the citizen retains such rights and does so by law “ad infinitum” or until the passport holder renounces his citizenship or the issuing state recalls the right or the extended legal provision!
More questions, less answers
Why should this matter be so important to students of constitutional law? Or should it? Does it really matter at all given the political climate on the island of St. Vincent and the Grenadines at this stage of its development? Is this just a case of “political witch hunt?” Why is it that this matter was not dealt with before now? Why take the matter to court after two decades to try and oust the current Opposition Leader as was suggested? Is the current Opposition Leader correct to say that he is doubly qualified to serve in his capacity? Are all commonwealth citizens created equal? Does it really matter if we do have a Prime Minister who has dual citizenship? Will this take away from his/her ability to serve in that capacity? Where would his/her loyalties lie if there should be a situation of political tension between both states in which he/she holds citizenship?Does it really matter at all?
These are questions that our nation and others who are following this situation may wish to consider at some point. But, to be fair, legal reasoning at times can be interpreted and be styled, “judge made law.” The wisest man who ever lived as we have come to understand this, penned these words in Proverbs 29:9 which seems to suggest that “if a wise person takes another to court it may only lead to anger or ridicule, highlighting the futility of seeking justice with someone who lacks understanding.” Is Dr. Ralph Gonsalves correct in taking the Opposition Leader to court over this matter?
Is the Constitution a dilemma ?
However, in my humble opinion, the constitutions of these former colonies (in the case of St. Vincent and the Grenadines) were handed to administrators and politicians at a critical juncture confined within our post emancipated economic and social development agenda in the 1970s. The phases of our island’s development were characterised by times when acceptance of and compliance with instructions written and or otherwise, were the order of those days. These constitutions were accepted as normative post colonial mechanisms. True, from research material, there had been some questions asked and suggestions made by some of our esteemed citizens in the 1970s. Our constitution stands as accepted.
Critical to note, the substantive and material objective were already decided, and that was to “hand” a constitution in a written format to a former colony. The agenda again was outlined and that was to give a rule book to indigenous people to order and structure their society, their political internal governance, and their overall economic and social lives for years to come. From 1979 to 2025, a mere 46 years have led us to this crucial point where we are still trying to dig deeper underneath the dried ink on fragile documents much older than forty six years and fashioned from antiquity.
The words, “Westminster – model” remain in our consciousness unless and until we change our views. Could there be anything else that could replace our identity as a Vincentian people who have riveted and anchored our souls on the belief in the Supremacy of God, first and foremost? We accepted the model and made it our own. Was this document reflective of the “will of all of our people”? Is there a need for constitutional amendments? The constitution in its current format is largely a model from which there could have been developed a more “autochthonous” (springing from the minds of our native peoples) version but we signed and accepted it wholesale and that our Westminster – model constitution is the Supreme law of our land.
Unless and until such time when comprehensive amendments reflect what some may call the new “Vincentian realities,” we are bound by this Supreme law. Reliance on this Supreme law will give rise to levels of legal precedence within case law about fundamental rights and other such matters of Commonwealth jurisprudence and elsewhere. It is this matter of binding and persuasive precedence which may lead us into dissecting both types of precedence to arrive at the reasoning behind the decision of Pereira, CJ who gave judgment in the Douglas case. It is a pivotal decision. If so, shouldn’t we continue to stand guided by this judgment even after five years?
Both constitutions of Dominica section 32 1. (a) and section 26 1. (a) St. Vincent and the Grenadines have the same wording with regards to: Disqualifications for Representatives and Senators. In St. Christopher/Nevis, section 28 1 (a) with the same words crafted by the framers of these colonial constitutions are also noted. These constitutions were our gifts!
Foreign sovereign state
What is a foreign state or a foreign sovereign state? One source puts it this way: “ “The term “foreign state” includes outlying possessions of a foreign state, but self-governing dominions or territories under mandate or trusteeship shall be regarded as separate foreign states.” But it is to the more simple but scholarly and legal reasoning within case law that I rest my case specifically. The learned judges have spoken but we may wish to seek their legal guidance again.
To summarise my point here is that, each state within the Commonwealth, the OECS, CARICOM or other groupings is foreign to each other. Each of our island states are held out within the international sphere as foreign sovereign states, as foreign sovereign states to each other with different laws specific to citizenship, immigration, investment and other areas.
What the current state of legal reasoning says is that we accept that anyone with dual citizenship who aspires to the role of Representative and Senator within the House of Parliament within commonwealth countries and other countries whose constitutions detail the disqualifying sections are indeed disqualified for holding such posts.
I am mindful that from all the discussions so far, it does seem that the relevant courts will have the final say on constitutional questions, they being the ultimate authority on constitutional issues. The court’s decisions interpret the constitution and its rulings are considered virtually final, and or may be altered only through a constitutional amendment or a new court decision.This depends on the nature of the constitutional issue.
On the other hand, while taking a deep breath, I am telling myself how blessed I am to be committed to learning the law. It is in my DNA.
