The views expressed herein are solely those of the writer.
By Doris Charles, PhD/law
National Liberation Movement
Saint Vincent and the Grenadines
Part 1
“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.”
END
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