The views expressed herein are solely those of the writer.
Saint Vincent and the Grenadines may be heading into a serious constitutional problem.
Right now, there is an active court case challenging the election of Opposition Leader Dr Godwin Friday and MP Fitzgerald Bramble on the basis that they are Canadian citizens and, by becoming Canadian citizens, swore allegiance to a foreign power. While that matter is before the court, the Government is now moving to amend the law so that their elections would be treated as valid, insanity. When a Government tries to change the legal meaning of the Constitution while a case on that very issue is already before the court, the public is entitled to ask whether this is genuine law reform or an attempt to resolve a political problem after the fact. You cannot take eddoes that were not yours, plant new ones in their place, and claim to have never taken them simply because new ones have sprouted, the law is the same. Simply replacing the current law with a new one does not mean that what was done under it before automatically becomes fundamentally correct.
Vincentians, the simple point of the matter is this: section 25 of our Constitution says a person may be elected to the House if he is a Commonwealth citizen. However, that section does not stand alone and is expressly made subject to section 26. Section 26 says a person is disqualified if, by his own act, he is under any acknowledgement of allegiance, obedience, or adherence to a foreign power or state. Section 36 then gives the High Court the power to decide whether someone has been validly elected. So, the Constitution already provides a clear structure. Yes, Commonwealth citizenship can make a person generally eligible, but that eligibility can still be lost if that same person has voluntarily sworn allegiance to a foreign state. Where there is a dispute, it is for the High Court to decide.
That is why the present attempt to amend the law is so controversial. The proposed amendment says that the phrase “foreign power or state” does not include a Commonwealth country. In simple terms, the Government is trying to argue that because Canada is a Commonwealth country, swearing allegiance to Canada should not count as allegiance to a foreign power for the purposes of disqualification. The proposed legislation also appears designed to protect past elections from being invalidated on this basis. That is not a small technical adjustment—it is a major legal change aimed directly at an issue already in court.
Canada is plainly a separate sovereign country from Saint Vincent and the Grenadines. It may share Commonwealth ties, but it is still foreign to this State in the ordinary constitutional sense. More importantly, Canadian citizenship is not accidental here. Canada’s own citizenship process makes it clear that a person becoming a Canadian citizen must take an oath of citizenship. That oath includes a promise to be faithful and bear true allegiance to the King of Canada. If any Vincentian politician voluntarily took that oath to acquire Canadian citizenship, it is very difficult to argue that he did not, by his own act, acknowledge allegiance to a foreign power.
There are a few cases in the region that the Vincentian public can look at to be better informed and decide for themselves.
In Dabdoub v Vaz from Jamaica, the court made it clear that the issue is not simply dual citizenship by itself. The real question is whether the person, by his own act, has acknowledged allegiance to another country. The Jamaican court upheld the disqualification of Daryl Vaz because his conduct showed acknowledgement of allegiance to the United States. That case is important because it shows that where foreign allegiance is voluntarily assumed, constitutional disqualification can easily follow.
The position is even clearer when we examine the case of Attorney General of Saint Christopher and Nevis v Dr Denzil Douglas. In that matter, the court found that Dr Douglas was disqualified because of his acknowledgement of allegiance to Dominica. That case matters here because Dominica, like Saint Vincent and the Grenadines, is a Commonwealth country. Yet the court still treated Dominica as a foreign state for the purpose of constitutional disqualification. If Dominica could be treated as foreign in relation to Saint Kitts and Nevis, then Canada can plainly be treated as foreign in relation to Saint Vincent and the Grenadines.
Legally, there is a strong regional basis for saying that a person who voluntarily acquires Canadian citizenship and swears allegiance as part of that process may fall within section 26 of the Constitution.
However, the matter is not simply about dual citizenship. It extends into the issue of abuse of constitutional power and the dangers of political imbalance.
In any proper democracy, Parliament makes laws and the courts decide cases. That basic principle has long been recognised in constitutional law, including in Hinds v The Queen. The concern here is that the Government is not merely changing the law for the future; it appears to be trying to change the legal meaning of the Constitution in the middle of an active court challenge so as to protect particular elected members from the consequences of the existing constitutional wording. This is constitutional abuse, and anyone can see it from the top of Soufrière.
There is an important difference between changing the law for tomorrow and changing it to influence a case that is already before the court today. In British Caribbean Bank v Attorney General of Belize, the court recognised that a legislature may change the law prospectively, but it cannot simply legislate in a way that effectively overturns or neutralises the judicial determination of rights in a live dispute. That kind of conduct not only blatantly offends the separation of powers but also disrespects the intelligence of the people of Saint Vincent and the Grenadines.
In plain language, Parliament cannot fairly tell the court, mid-case, what answer it must reach by changing the rules to suit the Government’s preferred outcome.
That is why this issue is so troubling. If the election petitions are already before the court, and Parliament now moves with unusual speed to redefine “foreign power” and insert saving clauses to protect earlier elections, the appearance is unavoidable, it looks like a direct response to the litigation. It looks as though the law is being changed, not because the Constitution was unclear for decades, but because the current wording has suddenly become politically inconvenient.
Now it must also be said, fairly, that not every constitutional amendment is automatically unlawful. The Constitution itself provides methods for amendment, and some provisions are more heavily protected than others. So, the Government may argue that it has the formal power to amend certain parts of the Constitution. However, having the votes to do something is not the same as doing it properly. Constitutional power is not supposed to be used as a shield for individuals whose eligibility is already under judicial challenge. Even where an amendment is technically possible, using it in a way that appears to frustrate an active court matter can still amount to an abuse of constitutional authority.
Section 36 of the Constitution is very important here because it gives the High Court power to determine whether a person was validly elected. That means election disputes are supposed to be settled by judges—not politically and whimsically amended by Parliament after the fact. Once a matter is properly before the court, the safer and more constitutional course is to allow the court to rule under the law that existed at the time of nomination and election.
That is the principle that Vincentians should insist on now.
If the Government believes the Constitution should be modernised to deal differently with Commonwealth citizenship, it is free to put that issue to the people and to Parliament for proper debate. It should not be used to rewrite the legal consequences of past conduct while a present court case is pending.
My view is simple: if Dr Friday and Mr Bramble voluntarily became Canadian citizens and took the oath that comes with Canadian citizenship, then there is a serious constitutional basis for saying that section 26 is engaged. Regional authorities such as Dabdoub v Vaz and Attorney General v Denzil Douglas show that voluntary foreign allegiance can disqualify an elected representative, and that Commonwealth status does not automatically remove the foreign character of another state. If that is so, then the proper place to determine their status is the High Court—not Parliament acting in the middle of the case.
Going forward, candidates should also be required to make full disclosure of all foreign citizenships, passports, and oaths of allegiance before nomination day so that these issues are settled early and openly.
This is why the issue matters so much to our Vincentian people because it is not just about two MPs. It is about whether the Constitution still means what it says when those in power find it inconvenient.
The law should not be changed midstream to protect political allies from an active case, even though the court may decide on its retroactive application. “Retroactive” here simply means that a particular law may apply to a period before it was passed.
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